ARE QUALIFIED BY MATERIALITY OR MATERIAL ADVERSE
EFFECT, IN ALL RESPECTS) WHEN MADE AND ON THE CLOSING DATE OF THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY CONTAINED HEREIN (UNLESS AS OF A
SPECIFIC DATE THEREIN IN WHICH CASE THEY SHALL BE ACCURATE AS OF SUCH DATE);
(II)
ALL OBLIGATIONS, COVENANTS AND AGREEMENTS OF THE COMPANY
REQUIRED TO BE PERFORMED AT OR PRIOR TO THE CLOSING DATE SHALL HAVE BEEN
PERFORMED;
(III)
THE DELIVERY BY THE COMPANY OF THE ITEMS SET FORTH IN SECTION
2.2(A) OF THIS AGREEMENT;
(IV)
THERE SHALL HAVE BEEN NO MATERIAL ADVERSE EFFECT WITH RESPECT
TO THE COMPANY SINCE THE DATE HEREOF; AND
(V)
FROM THE DATE HEREOF TO THE CLOSING DATE, TRADING IN THE
COMMON STOCK SHALL NOT HAVE BEEN SUSPENDED BY THE COMMISSION OR THE COMPANY'S
PRINCIPAL TRADING MARKET, AND, AT ANY TIME PRIOR TO THE CLOSING DATE, TRADING IN
SECURITIES GENERALLY AS REPORTED BY BLOOMBERG L.P. SHALL NOT HAVE BEEN SUSPENDED
OR LIMITED, OR MINIMUM PRICES SHALL NOT HAVE BEEN ESTABLISHED ON SECURITIES
WHOSE TRADES ARE REPORTED BY SUCH SERVICE, OR ON ANY TRADING MARKET, NOR SHALL A
BANKING MORATORIUM HAVE BEEN DECLARED EITHER BY THE UNITED STATES OR NEW YORK
STATE AUTHORITIES NOR SHALL THERE HAVE OCCURRED ANY MATERIAL OUTBREAK OR
ESCALATION OF HOSTILITIES OR OTHER NATIONAL OR INTERNATIONAL CALAMITY OF SUCH
MAGNITUDE IN ITS EFFECT ON, OR ANY MATERIAL ADVERSE CHANGE IN, ANY FINANCIAL
MARKET WHICH, IN EACH CASE, IN THE REASONABLE JUDGMENT OF SUCH PURCHASER, MAKES
IT IMPRACTICABLE OR INADVISABLE TO PURCHASE THE SECURITIES AT THE CLOSING.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
EXCEPT AS SET
FORTH IN THE DISCLOSURE SCHEDULES, WHICH DISCLOSURE SCHEDULES SHALL BE DEEMED A
PART HEREOF AND SHALL QUALIFY ANY REPRESENTATION OR OTHERWISE MADE HEREIN TO THE
EXTENT OF THE DISCLOSURE CONTAINED IN THE CORRESPONDING SECTION OF THE
DISCLOSURE SCHEDULES, THE COMPANY HEREBY MAKES THE FOLLOWING REPRESENTATIONS AND
WARRANTIES TO EACH PURCHASER:
(A)
SUBSIDIARIES.
ALL OF THE MATERIAL DIRECT AND INDIRECT
SUBSIDIARIES OF THE COMPANY ARE SET FORTH ON SCHEDULE 3.1(A).
THE COMPANY OWNS,
DIRECTLY OR INDIRECTLY, ALL OF THE CAPITAL STOCK OR OTHER EQUITY INTERESTS OF
EACH SUBSIDIARY FREE AND CLEAR OF ANY LIENS, AND ALL OF THE ISSUED AND
OUTSTANDING SHARES OF CAPITAL STOCK OF EACH SUBSIDIARY ARE VALIDLY ISSUED AND
ARE FULLY PAID, NON-ASSESSABLE AND FREE OF PREEMPTIVE AND SIMILAR RIGHTS TO
SUBSCRIBE FOR OR PURCHASE SECURITIES.
(B)
ORGANIZATION AND QUALIFICATION.
THE COMPANY AND EACH OF THE
SUBSIDIARIES 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, WITH THE REQUISITE POWER AND AUTHORITY TO OWN AND
USE ITS PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS AS CURRENTLY
CONDUCTED, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED OR IN GOOD STANDING, AS
THE CASE MAY BE, COULD NOT HAVE OR REASONABLY BE EXPECTED TO RESULT IN A
MATERIAL ADVERSE EFFECT AND NO PROCEEDING HAS BEEN INSTITUTED IN ANY SUCH
JURISDICTION