REPRESENTATIVE SHALL FAIL TO DO
SO, A REPLACEMENT STOCKHOLDER REPRESENTATIVE SHALL BE APPOINTED BY TWCP.
IF THE
STOCKHOLDER REPRESENTATIVE FAILS TO SO APPOINT A SUCCESSOR STOCKHOLDER
REPRESENTATIVE IN THE MANNER DESCRIBED ABOVE AND TWCP ALSO FAILS TO APPOINT A
SUCCESSOR STOCKHOLDER REPRESENTATIVE WITHIN THIRTY (30) DAYS AFTER THE
DISSOLUTION, RESIGNATION OR BANKRUPTCY OF THE STOCKHOLDER REPRESENTATIVE, THE
PROVISIONS SET FORTH IN THIS AGREEMENT, THE INDEMNITY AND EARNOUT ESCROW
AGREEMENT AND THE RETENTION PROGRAM ESCROW AGREEMENT REQUIRING THE CONSENT OR
ACTION OF THE STOCKHOLDER REPRESENTATIVE SHALL BE DEEMED TO BE REQUIRE THE
CONSENT OR ACTION OF ALL OF THE SELLERS.
ANY CHANGE IN THE STOCKHOLDER
REPRESENTATIVE SHALL BE EFFECTIVE ONLY UPON DELIVERY TO THE PURCHASER OF WRITTEN
NOTICE THEREOF EITHER FROM THE STOCKHOLDER REPRESENTATIVE OR TWCP, AS
APPLICABLE.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
CONCERNING THE COMPANY AND THE COMPANY SUBSIDIARIES
The Sellers represent and warrant to the Purchaser, jointly but not severally,
as follows, except as disclosed in the Seller Disclosure Schedule (which shall
be prepared in accordance with Section 9.2):
2.1
EXISTENCE; GOOD STANDING.
THE COMPANY IS A CORPORATION DULY
INCORPORATED AND ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE STATE OF DELAWARE AND HAS ALL REQUIRED CORPORATE POWER AND AUTHORITY TO
OWN OR LEASE ITS PROPERTIES AND ASSETS AND TO CONDUCT ITS BUSINESS AS PRESENTLY
CONDUCTED.
THE COMPANY IS DULY QUALIFIED TO DO BUSINESS AND IN GOOD STANDING AS
A FOREIGN CORPORATION IN ALL JURISDICTIONS IN WHICH THE FAILURE TO BE SO
QUALIFIED WOULD BE REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT.
SECTION
2.1 OF THE SELLER DISCLOSURE SCHEDULE SETS FORTH A COMPLETE AND ACCURATE LIST OF
EACH JURISDICTION IN WHICH THE COMPANY IS QUALIFIED TO DO BUSINESS AS A FOREIGN
CORPORATION.
2.2
NO CONFLICT; CONSENTS.
(A)
THE EXECUTION AND DELIVERY BY THE STOCKHOLDER REPRESENTATIVE AND
THE SELLERS OF THIS AGREEMENT, THE INDEMNITY AND EARNOUT ESCROW AGREEMENT, THE
RETENTION PROGRAM ESCROW AGREEMENT AND ANY OTHER DOCUMENTS REQUIRED TO BE
EXECUTED AND DELIVERED BY THE STOCKHOLDER REPRESENTATIVE AND THE SELLERS UNDER
THIS AGREEMENT (COLLECTIVELY, THE "SELLER DOCUMENTS") DO NOT, AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THEREUNDER (ASSUMING
THE REQUIRED CONSENTS ARE OBTAINED ON OR PRIOR TO CLOSING) WILL NOT: (I) VIOLATE
THE ORGANIZATIONAL DOCUMENTS OF THE COMPANY OR ANY COMPANY SUBSIDIARY; (II)
CONSTITUTE A MATERIAL BREACH OF OR RESULT IN A MATERIAL DEFAULT UNDER (WITH OR
WITHOUT THE GIVING OF NOTICE OR THE LAPSE OF TIME), OR RESULT IN THE OTHER PARTY
HAVING A RIGHT OF TERMINATION, CANCELLATION OR ACCELERATION UNDER, ANY
SIGNIFICANT CONTRACT; (III) RESULT, IN ANY MATERIAL RESPECT, IN A VIOLATION OF
ANY APPLICABLE LAW; (IV) RESULT IN THE CREATION OR IMPOSITION OF ANY LIENS UPON
ANY OF THE ASSETS OR PROPERTIES OF THE COMPANY OR ANY OF
10
THE COMPANY SUBSIDIARIES OR UPON THE SHARES (OTHER THAN ANY LIENS ARISING DUE TO
ACTIONS OF THE PURCHASER); (V) EXCEPT AS CONTEMPLATED BY THE RETENTION PROGRAM
OR SALE BONUS PROGRAM, RESULT IN THE PAYMENT OF, OR THE CREATION OF ANY