THIRD PARTY, EXCEPT FOR THE APPROVAL OF THE COMPANY'S STOCKHOLDERS AND
AS SET FORTH IN SCHEDULE 2.2(D)(V);
(VI)
NO COURT, ARBITRATOR OR GOVERNMENTAL AUTHORITY SHALL HAVE ISSUED
ANY ORDER RESTRAINING THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, AND NO PROCEEDING CHALLENGING THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR SEEKING TO PROHIBIT OR MATERIALLY DELAY THE CLOSING SHALL
HAVE BEEN INSTITUTED BY ANY PERSON BEFORE ANY COURT, ARBITRATOR OR GOVERNMENTAL
AUTHORITY AND BE PENDING; AND
(VII)
PURCHASERS SHALL HAVE IN THE AGGREGATE PURCHASED SHARES FOR A
TOTAL INVESTMENT AMOUNT OF AT LEAST $150 MILLION.
(E)
THE OBLIGATIONS OF THE COMPANY AT THE CLOSING TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED AT SUCH CLOSING SHALL BE SUBJECT TO THE FULFILLMENT,
OR WAIVER BY THE COMPANY, OF THE CONDITIONS THAT ALL REPRESENTATIONS AND
WARRANTIES OF THE PURCHASERS CONTAINED HEREIN SHALL REMAIN TRUE AND CORRECT IN
ALL MATERIAL RESPECTS AS OF THE CLOSING DATE, AS IF MADE AT AND AS OF THE
CLOSING DATE (EXCEPT AS AFFECTED BY THE TORNADO TRANSACTION), AND THE PURCHASERS
SHALL HAVE PERFORMED ALL OF THEIR COVENANTS AND AGREEMENTS TO BE PERFORMED ON OR
PRIOR TO THE CLOSING DATE.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
EXCEPT AS SET
FORTH UNDER THE CORRESPONDING SECTION OF THE DISCLOSURE SCHEDULES, WHICH
DISCLOSURE SCHEDULES SHALL DEEMED A PART HEREOF, THE COMPANY HEREBY MAKES THE
FOLLOWING REPRESENTATIONS AND WARRANTIES TO EACH PURCHASER:
(A)
SUBSIDIARIES.
EXCEPT FOR THE SUBSIDIARY, THE COMPANY HAS NO
DIRECT OR INDIRECT SUBSIDIARIES.
THE COMPANY OWNS, DIRECTLY OR INDIRECTLY, ALL
OF THE CAPITAL STOCK OF THE SUBSIDIARY FREE AND CLEAR OF ANY AND ALL LIENS, AND
ALL THE ISSUED AND OUTSTANDING SHARES OF CAPITAL
6
STOCK OF THE SUBSIDIARY ARE VALIDLY ISSUED AND ARE FULLY PAID, NON-ASSESSABLE
AND FREE OF PREEMPTIVE AND SIMILAR RIGHTS.
(B)
ORGANIZATION AND QUALIFICATION.
EACH OF THE COMPANY AND THE
SUBSIDIARY 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 THE SUBSIDIARY IS IN VIOLATION
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 SUBSIDIARY 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, INDIVIDUALLY OR IN THE AGGREGATE, HAVE
OR REASONABLY BE EXPECTED TO RESULT IN (I) AN ADVERSE EFFECT ON THE LEGALITY,
VALIDITY OR ENFORCEABILITY OF ANY TRANSACTION DOCUMENT, (II) A MATERIAL AND
ADVERSE EFFECT ON THE RESULTS OF OPERATIONS, ASSETS, BUSINESS, OR CONDITION
(FINANCIAL OR OTHERWISE) OF