OR DESTROYED
CERTIFICATE THE MERGER CONSIDERATION.
(F)
WITHHOLDING RIGHTS.
THE SURVIVING CORPORATION OR THE PAYING AGENT SHALL BE
ENTITLED TO DEDUCT AND WITHHOLD ANY APPLICABLE TAXES FROM THE CONSIDERATION
OTHERWISE PAYABLE PURSUANT TO THIS AGREEMENT TO ANY HOLDER OF SHARES OF COMPANY
COMMON STOCK, PREFERRED STOCK, OPTIONS OR WARRANTS.
TO THE EXTENT THAT AMOUNTS
ARE SO DEDUCTED AND WITHHELD, SUCH AMOUNTS SHALL BE TREATED FOR ALL PURPOSES
UNDER THIS AGREEMENT AS HAVING BEEN PAID TO THE PERSON IN RESPECT OF WHICH SUCH
DEDUCTION AND WITHHOLDING WAS MADE.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the disclosure schedule delivered by the Company to
Parent and Newco simultaneously with the execution of this Agreement, the
Company hereby represents and warrants to Parent and Newco as set forth below.
SECTION 3.01.
ORGANIZATION AND QUALIFICATION.
(A)
EACH OF THE COMPANY AND
EACH OF ITS SUBSIDIARIES IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION AND HAS THE
REQUISITE POWER AND AUTHORITY NECESSARY TO OWN, LEASE AND OPERATE ITS PROPERTIES
AND ASSETS AND TO CARRY ON ITS BUSINESS AS IT IS NOW BEING CONDUCTED.
EACH OF
THE COMPANY AND EACH OF ITS SUBSIDIARIES IS DULY QUALIFIED OR LICENSED TO DO
BUSINESS, AND IS IN GOOD STANDING, IN EACH JURISDICTION WHERE THE CHARACTER OF
ITS PROPERTIES AND ASSETS OWNED, LEASED OR OPERATED BY IT OR THE NATURE OF ITS
ACTIVITIES MAKES SUCH QUALIFICATION OR LICENSING NECESSARY, EXCEPT WHERE THE
FAILURE TO BE SO DULY QUALIFIED OR LICENSED OR IN GOOD STANDING, INDIVIDUALLY OR
IN THE AGGREGATE, DOES NOT HAVE AND COULD NOT REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT.
THE TERM "MATERIAL ADVERSE EFFECT" MEANS ANY STATE OF
FACTS, CHANGE, DEVELOPMENT, EVENT, EFFECT, CONDITION OR OCCURRENCE THAT IS
MATERIALLY ADVERSE TO THE BUSINESS, PROPERTIES, ASSETS, CONDITION (FINANCIAL OR
OTHERWISE), PROSPECTS OR RESULTS OF OPERATIONS OF THE
6
COMPANY (OR THE SURVIVING CORPORATION) AND ITS SUBSIDIARIES TAKEN AS A WHOLE OR
THAT COULD REASONABLY BE EXPECTED TO, DIRECTLY OR INDIRECTLY, PREVENT OR
MATERIALLY IMPAIR OR DELAY THE ABILITY OF THE COMPANY TO PERFORM ITS OBLIGATIONS
HEREUNDER, EXCEPT TO THE EXTENT THAT SUCH ADVERSE EFFECT ARISES FROM GENERAL
ECONOMIC, LEGAL OR REGULATORY CONDITIONS AFFECTING THE
COMPUTER SOFTWARE
INDUSTRY GENERALLY THAT DO NOT HAVE A DISPROPORTIONATE EFFECT ON THE COMPANY;
PROVIDED THAT THE FACT THAT THE COMPANY SHALL FAIL TO MEET FINANCIAL PROJECTIONS
FOR PERIODS SUBSEQUENT TO THE DATE OF THIS AGREEMENT SHALL NOT, IN AND OF
ITSELF, CONSTITUTE A MATERIAL ADVERSE EFFECT, BUT THIS PROVISO SHALL IN NO WAY
EXCLUDE FROM THE DEFINITION OF MATERIAL ADVERSE EFFECT OR FROM WHAT CONSTITUTES
A MATERIAL ADVERSE EFFECT ANY STATE OF FACTS, CHANGE, DEVELOPMENT, EVENT,
EFFECT, CONDITION OR OCCURRENCE THAT GAVE RISE TO, CONTRIBUTED TO OR CAUSED SUCH
FAILURE TO MEET FINANCIAL PROJECTIONS.
(B)
THE COMPANY HAS FURNISHED TO NEWCO A COMPLETE AND CORRECT COPY OF THE
CERTIFICATE OF INCORPORATION AND THE BYLAWS OF THE COMPANY, AND THE CERTIFICATES
OF INCORPORATION AND THE