SUCH SUBSIDIARY IS REQUIRED SO TO QUALIFY.
EACH SUBSIDIARY HAS
FULL CORPORATE POWER AND AUTHORITY TO OWN OR LEASE AND TO OPERATE AND USE ITS
PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS AS NOW CONDUCTED.
(D)
TRUE AND COMPLETE COPIES OF (I) THE
CERTIFICATE OF INCORPORATION AND ALL AMENDMENTS THERETO, (II) THE BY-LAWS, AS
AMENDED TO DATE, AND (III) THE MINUTE BOOKS OF EACH SUBSIDIARY HAVE BEEN
DELIVERED OR MADE AVAILABLE TO OPTIONEE.
NO SUBSIDIARY IS IN DEFAULT UNDER, OR
IN VIOLATION OF, ANY PROVISION OF ITS CERTIFICATE OF INCORPORATION OR BY-LAWS.
SUCH MINUTE BOOKS CONTAIN TRUE AND COMPLETE RECORDS OF ALL MEETINGS OR OTHER
ACTIONS TAKEN BY THE BOARD OF DIRECTORS AND STOCKHOLDERS OF EACH SUBSIDIARY.
3.3.
AUTHORITY OF THE COMPANY.
(A)
THE COMPANY HAS FULL CORPORATE POWER AND
AUTHORITY TO EXECUTE, DELIVER AND PERFORM THIS AGREEMENT, ALL OF THE COMPANY
ANCILLARY AGREEMENTS AND THE MERGER AGREEMENT.
18
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT, THE COMPANY ANCILLARY
AGREEMENTS AND, TO THE EXTENT THE OPTION IS EXERCISED ON THE TERMS HEREOF
(INCLUDING THE MERGER AGREEMENT IN THE FORM ATTACHED HERETO) THE MERGER
AGREEMENT (TOGETHER WITH THE OTHER INSTRUMENTS, DOCUMENTS AND AGREEMENTS
CONTEMPLATED BY OR TO BE EXECUTED IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THE MERGER AGREEMENT) BY THE COMPANY HAVE BEEN DULY AUTHORIZED
AND APPROVED BY THE COMPANY'S BOARD OF DIRECTORS AND, OTHER THAN WITH RESPECT TO
THE MERGER AGREEMENT, TO THE EXTENT REQUIRED BY THE CERTIFICATE OF INCORPORATION
OR ANY AGREEMENT TO WHICH THE COMPANY IS A PARTY, BY THE REQUISITE NUMBER OF THE
COMPANY'S STOCKHOLDERS AND DO NOT REQUIRE ANY FURTHER AUTHORIZATION OR CONSENT
OF THE COMPANY OR ITS STOCKHOLDERS.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED,
EXECUTED AND DELIVERED BY THE COMPANY AND IS THE LEGAL, VALID AND BINDING
OBLIGATION OF THE COMPANY ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, AND EACH OF
THE COMPANY ANCILLARY AGREEMENTS HAS BEEN DULY AUTHORIZED BY THE COMPANY AND
UPON EXECUTION AND DELIVERY BY THE COMPANY WILL BE A LEGAL, VALID AND BINDING
OBLIGATION OF THE COMPANY ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, IN EACH CASE
EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR SIMILAR LAWS AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND BY THE EFFECT OF GENERAL PRINCIPLES OF EQUITY
(REGARDLESS OF WHETHER ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT
LAW).
(B)
EXCEPT AS SET FORTH IN SCHEDULE 3.3, NEITHER
THE EXECUTION AND DELIVERY OF THIS AGREEMENT, ANY OF THE COMPANY ANCILLARY
AGREEMENTS OR THE MERGER AGREEMENT NOR THE CONSUMMATION OF ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, NOR COMPLIANCE WITH OR FULFILLMENT
OF THE TERMS, CONDITIONS AND PROVISIONS HEREOF OR THEREOF, IN EACH CASE BY THE
COMPANY, NOR THE EXERCISE OF THE OPTION, WILL:
(I)
CONFLICT WITH, RESULT IN A BREACH OF THE
TERMS, CONDITIONS OR PROVISIONS OF, OR CONSTITUTE A DEFAULT, AN EVENT OF DEFAULT
OR AN EVENT CREATING RIGHTS OF ACCELERATION, TERMINATION OR CANCELLATION OR A
LOSS OF RIGHTS UNDER, OR RESULT IN