date hereof (the "Disclosure Letter") or
(ii) disclosed in the SEC Filings (excluding any forward looking disclosures set
forth in any risk factor section, any disclosures in any section relating to
forward looking statements and any other disclosures included therein to the
extent they are primarily predictive, cautionary or
7
forward-looking in nature) filed with the SEC prior to the date hereof, the
Company represents and warrants to Parent and MergerCo as follows:
2.1
Corporate Status, etc.
(A)
ORGANIZATION. SCHEDULE 2.1(A) OF THE DISCLOSURE LETTER LISTS ALL
OF THE COMPANY'S SUBSIDIARIES AND THEIR RESPECTIVE JURISDICTIONS OF
ORGANIZATION. EACH OF THE COMPANY AND ITS SUBSIDIARIES IS AN ENTITY DULY
INCORPORATED OR, WHERE APPLICABLE, DULY FORMED, VALIDLY EXISTING AND, WHERE SUCH
CONCEPT IS RECOGNIZED, IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF
ITS ORGANIZATION, AND HAS FULL CORPORATE OR OTHER ORGANIZATIONAL POWER AND
AUTHORITY TO OWN, LEASE AND OPERATE ITS ASSETS AND PROPERTIES AND TO CARRY ON
ITS BUSINESS AS PRESENTLY CONDUCTED. EACH OF THE COMPANY AND EACH OF ITS
SUBSIDIARIES IS DULY QUALIFIED AND, WHERE SUCH CONCEPT IS RECOGNIZED, IN GOOD
STANDING AS A FOREIGN CORPORATION TO DO BUSINESS IN ALL JURISDICTIONS IN WHICH
IT IS REQUIRED TO BE SO QUALIFIED AND IN GOOD STANDING AND IN WHICH THE FAILURE
TO BE SO QUALIFIED AND IN GOOD STANDING, INDIVIDUALLY OR IN THE AGGREGATE, WOULD
HAVE A MATERIAL ADVERSE EFFECT.
(B)
AUTHORIZATION, ETC. THE COMPANY HAS FULL POWER AND AUTHORITY TO
ENTER INTO THIS AGREEMENT AND TO PERFORM ITS OBLIGATIONS HEREUNDER. THE
EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY OF THIS AGREEMENT HAVE BEEN
DULY AUTHORIZED BY THE BOARD OF DIRECTORS OF THE COMPANY AND WILL BE DULY
AUTHORIZED BY THE REQUISITE CONSENT OF STOCKHOLDERS IMMEDIATELY AFTER THE ENTRY
INTO THIS AGREEMENT, WHICH CONSTITUTE ALL REQUISITE CORPORATE AUTHORIZATION ON
THE PART OF THE COMPANY FOR SUCH ACTION. THIS AGREEMENT HAS BEEN DULY EXECUTED
AND DELIVERED BY THE COMPANY AND CONSTITUTES THE VALID AND BINDING OBLIGATION OF
THE COMPANY, ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS,
EXCEPT AS LIMITED BY LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY OR BY GENERAL EQUITABLE PRINCIPLES. THE COMPANY HAS PROVIDED PARENT
WITH COMPLETE AND CORRECT COPIES OF ITS CERTIFICATE OF INCORPORATION AND
BY-LAWS.
2.2
Capitalization.
(A)
THE COMPANY. AS OF THE DATE HEREOF, THE AUTHORIZED CAPITAL STOCK
OF THE COMPANY CONSISTS OF 7,000,000 SHARES OF COMPANY STOCK, ALL OF WHICH HAVE
BEEN DULY AUTHORIZED, OF WHICH 5,786,464.43 SHARES HAVE BEEN VALIDLY ISSUED AND
ARE OUTSTANDING. SCHEDULE 2.2(A) OF THE DISCLOSURE LETTER SETS FORTH, AS OF THE
DATE HEREOF, ALL PERSONS OWNING OF RECORD ANY OUTSTANDING SHARES OF COMPANY
STOCK AND THE NUMBER OF SUCH SHARES OWNED BY SUCH PERSON.
(B)
SUBSIDIARIES. ALL ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK
OF THE COMPANY'S SUBSIDIARIES HAVE BEEN DULY AUTHORIZED AND VALIDLY ISSUED, ARE
FULLY PAID AND NONASSESSABLE AND ARE OWNED BY THE PERSONS LISTED IN SCHEDULE
2.2(B) OF THE DISCLOSURE LETTER FREE AND CLEAR OF ANY LIENS OTHER THAN
RESTRICTIONS ON TRANSFER IMPOSED