WITH THE CLOSING ARE SUBJECT TO THE FOLLOWING CONDITIONS
BEING MET:
(I)
THE ACCURACY IN ALL MATERIAL RESPECTS ON
THE CLOSING DATE OF THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY CONTAINED
HEREIN;
(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 (EXCEPT FOR ANY SUSPENSION OF TRADING OF
LIMITED DURATION AGREED TO BY THE COMPANY, WHICH SUSPENSION SHALL BE TERMINATED
PRIOR TO THE CLOSING), AND, AT ANY TIME PRIOR TO THE CLOSING DATE, TRADING IN
SECURITIES GENERALLY
7
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 EACH PURCHASER, MAKES IT IMPRACTICABLE
OR INADVISABLE TO PURCHASE THE SHARES AT THE CLOSING.
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
WARRANTY 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 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.
IF THE COMPANY HAS NO SUBSIDIARIES, THEN
ALL OTHER REFERENCES TO THE SUBSIDIARIES OR ANY OF THEM IN THE TRANSACTION
DOCUMENTS SHALL BE DISREGARDED.
(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 (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 ANY
SUBSIDIARY