WARRANTIES OF PARENT
Parent represents and warrants to the Company that:
SECTION 3.01.
CORPORATE AUTHORIZATION.
THE EXECUTION, DELIVERY AND PERFORMANCE
BY PARENT, PURCHASER AND MERGER SUBSIDIARY OF THIS AGREEMENT AND THE
CONSUMMATION BY PARENT, PURCHASER AND MERGER SUBSIDIARY OF THE TRANSACTIONS
CONTEMPLATED HEREBY ARE WITHIN THE CORPORATE POWERS OF PARENT, PURCHASER AND
MERGER SUBSIDIARY AND HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE
ACTION.
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY EACH OF PARENT,
PURCHASER AND MERGER SUBSIDIARY AND, ASSUMING THE DUE AUTHORIZATION, EXECUTION
AND DELIVERY BY THE COMPANY, CONSTITUTES A VALID AND BINDING AGREEMENT OF EACH
OF PARENT, PURCHASER AND MERGER SUBSIDIARY, ENFORCEABLE AGAINST IT IN ACCORDANCE
WITH ITS TERMS.
SECTION 3.02.
DISCLOSURE DOCUMENTS.
THE INFORMATION WITH RESPECT TO PARENT AND
ANY OF ITS AFFILIATES THAT PARENT SUPPLIES TO THE COMPANY SPECIFICALLY FOR USE
IN ANY DOCUMENT TO BE FILED BY THE COMPANY WITH THE SEC IN CONNECTION WITH THE
OFFER WILL NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE
ANY MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE
THE STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING AT THE TIME OF THE FILING OF SUCH COMPANY DISCLOSURE
DOCUMENT OR ANY SUPPLEMENT OR AMENDMENT THERETO AND AT THE TIME OF ANY
DISTRIBUTION OR DISSEMINATION THEREOF.
SECTION 3.03.
FUNDS.
PARENT HAS, OR WILL HAVE AT THE ACCEPTANCE DATE,
SUFFICIENT FUNDS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING
CONSUMMATING THE OFFER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
AND PAYING ALL FEES AND EXPENSES RELATING TO SUCH TRANSACTIONS.
ARTICLE 4
COVENANTS OF THE COMPANY
SECTION 4.01.
ADVERSE RECOMMENDATION CHANGE.
THE SPECIAL COMMITTEE SHALL
(A) RECOMMEND THAT THE COMPANY'S STOCKHOLDERS, OTHER THAN PARENT AND ITS
AFFILIATES, TENDER THEIR SHARES IN THE OFFER AND (B) NOT WITHHOLD, WITHDRAW,
QUALIFY OR MODIFY IN A MANNER ADVERSE TO PARENT OR FAIL TO MAKE THE SPECIAL
COMMITTEE RECOMMENDATION OR PUBLICLY RECOMMEND OR ANNOUNCE ITS INTENTION TO TAKE
ANY ACTION OR MAKE ANY STATEMENT INCONSISTENT WITH THE SPECIAL COMMITTEE
RECOMMENDATION (COLLECTIVELY, AN "ADVERSE RECOMMENDATION CHANGE").
HOWEVER, IF
THE SPECIAL COMMITTEE DETERMINES IN GOOD FAITH (AFTER CONSIDERING THE ADVICE OF
ITS OUTSIDE LEGAL AND FINANCIAL ADVISORS) THAT CONTINUING TO RECOMMEND THAT THE
COMPANY'S STOCKHOLDERS TENDER THEIR SHARES IN THE OFFER COULD BE REASONABLY
DETERMINED TO BE INCONSISTENT WITH ITS FIDUCIARY DUTIES UNDER DELAWARE LAW, THEN
THE SPECIAL COMMITTEE MAY MAKE AN ADVERSE RECOMMENDATION CHANGE, IN WHICH CASE
THE OBLIGATIONS OF THE SPECIAL COMMITTEE AND THE COMPANY BOARD UNDER THIS
SECTION 4.01 SHALL CEASE; PROVIDED THAT THE SPECIAL COMMITTEE MAY NOT MAKE AN
ADVERSE RECOMMENDATION CHANGE UNTIL AFTER AT LEAST 48 HOURS FOLLOWING PARENT'S
RECEIPT OF WRITTEN NOTICE FROM THE COMPANY ADVISING PARENT THAT THE SPECIAL
COMMITTEE
7
INTENDS TO MAKE SUCH AN ADVERSE RECOMMENDATION CHANGE AND THE REASONS THEREFOR
AND THE SPECIAL COMMITTEE CONSIDERS ANY MODIFICATIONS PROPOSED BY PARENT DURING
SUCH 48-HOUR PERIOD IN ORDER TO ELIMINATE THE NEED FOR SUCH ADVERSE
RECOMMENDATION CHANGE.
SECTION 4.02.
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