CHANGE IN, ANY FINANCIAL
MARKET WHICH, IN EACH CASE, IN THE REASONABLE JUDGMENT OF EACH PURCHASER, MAKES
IT IMPRACTICABLE OR INADVISABLE TO PURCHASE THE SHARES AND WARRANTS AT THE
CLOSING;
(VI)
THE ACCURACY IN ALL MATERIAL RESPECTS ON THE CLOSING DATE OF THE
REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS CONTAINED HEREIN;
(VII)
ALL OBLIGATIONS, COVENANTS AND AGREEMENTS OF THE SELLING
STOCKHOLDER REQUIRED TO BE PERFORMED AT OR PRIOR TO THE CLOSING DATE SHALL HAVE
BEEN PERFORMED IN ALL MATERIAL RESPECTS; AND
(VIII)
THE DELIVERY BY THE SELLING STOCKHOLDERS OF THE ITEMS SET FORTH IN
SECTION 2.2(B) OF THIS AGREEMENT.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
EXCEPT AS SET
FORTH IN THE SEC REPORTS (AS DEFINED BELOW) OR IN THE DISCLOSURE SCHEDULES WHICH
DISCLOSURE SCHEDULES SHALL BE DEEMED A PART HEREOF AND TO QUALIFY ANY
REPRESENTATION OR WARRANTY OTHERWISE MADE HEREIN TO THE EXTENT OF SUCH
DISCLOSURE, THE COMPANY HEREBY MAKES THE REPRESENTATIONS AND WARRANTIES SET
FORTH BELOW TO EACH PURCHASER:
(A)
SUBSIDIARIES.
SCHEDULE 3.1(A) SETS FORTH A LIST OF ALL OF THE
DIRECT AND INDIRECT SUBSIDIARIES OF THE COMPANY.
THE COMPANY OWNS, DIRECTLY OR
INDIRECTLY, ALL OF THE CAPITAL STOCK OR OTHER EQUITY INTERESTS OF EACH
SUBSIDIARY FREE AND CLEAR OF ANY LIENS, AND ALL THE ISSUED AND OUTSTANDING
SHARES OF CAPITAL STOCK OF EACH SUBSIDIARY ARE VALIDLY
8
ISSUED AND ARE FULLY PAID, NON-ASSESSABLE AND FREE OF PREEMPTIVE AND SIMILAR
RIGHTS TO SUBSCRIBE FOR OR PURCHASE SECURITIES.
(B)
ORGANIZATION AND QUALIFICATION.
THE COMPANY AND EACH OF THE
SUBSIDIARIES IS AN ENTITY DULY INCORPORATED OR OTHERWISE ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
INCORPORATION OR ORGANIZATION (AS APPLICABLE), WITH THE REQUISITE POWER AND
AUTHORITY TO OWN AND USE ITS PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS
AS CURRENTLY CONDUCTED.
NEITHER THE COMPANY NOR ANY SUBSIDIARY IS IN VIOLATION
OR DEFAULT OF ANY OF THE PROVISIONS OF ITS RESPECTIVE CERTIFICATE OR ARTICLES OF
INCORPORATION, BYLAWS OR OTHER ORGANIZATIONAL OR CHARTER DOCUMENTS.
EACH OF THE
COMPANY AND THE SUBSIDIARIES IS DULY QUALIFIED TO CONDUCT BUSINESS AND IS IN
GOOD STANDING AS A FOREIGN CORPORATION OR OTHER ENTITY IN EACH JURISDICTION IN
WHICH THE NATURE OF THE BUSINESS CONDUCTED OR PROPERTY OWNED BY IT MAKES SUCH
QUALIFICATION NECESSARY, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED OR IN GOOD
STANDING, AS THE CASE MAY BE, COULD NOT HAVE OR REASONABLY BE EXPECTED TO RESULT
IN (I) A MATERIAL ADVERSE EFFECT ON THE LEGALITY, VALIDITY OR ENFORCEABILITY OF
ANY TRANSACTION DOCUMENT, (II) A MATERIAL ADVERSE EFFECT ON THE RESULTS OF
OPERATIONS, ASSETS, BUSINESS, PROSPECTS OR CONDITION (FINANCIAL OR OTHERWISE) OF
THE COMPANY AND THE SUBSIDIARIES, TAKEN AS A WHOLE, OR (III) A MATERIAL ADVERSE
EFFECT ON THE COMPANY'S ABILITY TO PERFORM IN ANY MATERIAL RESPECT ON A TIMELY
BASIS ITS OBLIGATIONS UNDER ANY TRANSACTION DOCUMENT (ANY OF (I), (II) OR (III),
A "MATERIAL ADVERSE EFFECT") AND NO PROCEEDING HAS BEEN INSTITUTED IN ANY SUCH
JURISDICTION REVOKING,