THE EXECUTION AND DELIVERY BY PARENT AND
PURCHASER OF THIS AGREEMENT AND EACH INSTRUMENT REQUIRED HEREBY TO BE EXERCISED
AND DELIVERED BY PARENT OR PURCHASER PRIOR TO OR AT THE EFFECTIVE TIME AND THE
PERFORMANCE OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER AND THEREUNDER, AND THE
CONSUMMATION BY PARENT AND PURCHASER OF THE TRANSACTIONS HAVE BEEN DULY AND
VALIDLY AUTHORIZED BY THE RESPECTIVE BOARDS OF DIRECTORS OF PARENT AND
PURCHASER, AND THE SHAREHOLDERS OF PURCHASER AND PARENT, AND NO OTHER CORPORATE
PROCEEDINGS ON THE PART OF PARENT OR PURCHASER ARE NECESSARY TO AUTHORIZE THIS
AGREEMENT, OR COMMENCE THE OFFER OR TO CONSUMMATE THE TRANSACTIONS (INCLUDING
THE OFFER) OTHER THAN FILING AND RECORDATION OF APPROPRIATE MERGER DOCUMENTS AS
REQUIRED BY THE PBCL.
THIS AGREEMENT HAS BEEN DULY AND VALIDLY EXECUTED AND
DELIVERED BY EACH OF PARENT AND PURCHASER AND, ASSUMING THIS AGREEMENT
CONSTITUTES A VALID AND BINDING OBLIGATION OF THE COMPANY, THIS AGREEMENT
CONSTITUTES A VALID AND BINDING AGREEMENT OF EACH OF PARENT AND PURCHASER,
ENFORCEABLE AGAINST EACH OF PARENT AND PURCHASER IN ACCORDANCE WITH ITS TERMS.
SECTION 4.3.
PROXY STATEMENT.
NONE OF THE
INFORMATION SUPPLIED IN WRITING BY PARENT, PURCHASER AND THEIR RESPECTIVE
AFFILIATES SPECIFICALLY FOR INCLUSION IN THE PROXY STATEMENT, IF REQUIRED,
SHALL, AT THE TIME THE PROXY STATEMENT IS MAILED, AT THE TIME OF THE SHAREHOLDER
MEETING OR AT THE EFFECTIVE TIME, CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL
FACT OR OMIT TO STATE ANY MATERIAL FACT REQUIRED TO BE STATED THEREIN OR
NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES
UNDER WHICH THEY WERE MADE, NOT MISLEADING; PROVIDED, HOWEVER, THAT PARENT AND
PURCHASER MAKE NO REPRESENTATION OR WARRANTY AS TO ANY OF THE INFORMATION
RELATING TO AND SUPPLIED BY OR ON BEHALF OF THE COMPANY SPECIFICALLY FOR
INCLUSION IN THE PROXY STATEMENT.
IF, AT ANY TIME PRIOR TO THE EFFECTIVE TIME,
ANY EVENT RELATING TO PARENT OR ANY OF ITS AFFILIATES, OFFICERS OR DIRECTORS IS
DISCOVERED BY PARENT THAT SHOULD BE SET FORTH IN A SUPPLEMENT TO THE PROXY
STATEMENT, PARENT WILL PROMPTLY INFORM THE COMPANY.
35
SECTION 4.4.
CONSENTS AND APPROVALS; NO
VIOLATION.
SUBJECT TO THE TAKING OF THE ACTIONS DESCRIBED IN THE IMMEDIATELY
SUCCEEDING SENTENCE, THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE TENDER
AND OPTION AGREEMENT AND THE TOP-UP OPTION AGREEMENT DO NOT, AND THE
CONSUMMATION OF THE TRANSACTIONS WILL NOT, CONFLICT WITH, OR RESULT IN ANY
VIOLATION OF, OR DEFAULT (WITH OR WITHOUT NOTICE OR LAPSE OF TIME, OR BOTH)
UNDER, OR GIVE RISE TO A RIGHT OF TERMINATION, CANCELLATION OR ACCELERATION OF
ANY OBLIGATION OR TO LOSS OF A MATERIAL BENEFIT UNDER, OR RESULT IN THE CREATION
OF ANY LIEN UPON ANY OF THE MATERIAL PROPERTIES OR ASSETS OF PARENT UNDER (I)
THE CERTIFICATE OF INCORPORATION OR BYLAWS OF PARENT OR PURCHASER, (II) ANY LOAN
OR CREDIT AGREEMENT, NOTE, BOND, INDENTURE, LEASE OR OTHER AGREEMENT, INSTRUMENT
OR PERMIT APPLICABLE TO PARENT OR PURCHASER OR THEIR RESPECTIVE PROPERTIES OR
ASSETS, OR (III) ANY JUDGMENT, ORDER, WRIT, INJUNCTION OR DECREE,