OWNED OR LEASED BY IT
OR THE OPERATION OF THE BUSINESS MAKES SUCH LICENSING OR QUALIFICATION NECESSARY
OR DESIRABLE, EXCEPT TO THE EXTENT THAT THE FAILURE TO BE SO LICENSED, QUALIFIED
OR IN GOOD STANDING, INDIVIDUALLY OR IN THE AGGREGATE, DOES NOT CURRENTLY, AND
WOULD NOT REASONABLY BE EXPECTED TO, MATERIALLY AND ADVERSELY AFFECT THE ABILITY
OF THE SELLER TO, DIRECTLY OR INDIRECTLY, OWN THE CAPITAL STOCK OF THE COMPANIES
AND THE COMPANY SUBSIDIARIES OR THE ABILITY OF THE COMPANIES OR THE COMPANY
SUBSIDIARIES TO CONDUCT THE BUSINESS (TAKEN AS A WHOLE) AS CURRENTLY CONDUCTED.
EXCEPT AS SET FORTH IN SECTION 3.04 OF THE DISCLOSURE SCHEDULE, ALL THE ISSUED
AND OUTSTANDING CAPITAL STOCK OR OTHER EQUITY INTERESTS OF THE COMPANY
SUBSIDIARIES ARE OWNED OF RECORD AND BENEFICIALLY BY A COMPANY OR ANOTHER
COMPANY SUBSIDIARY, FREE AND CLEAR OF ANY ENCUMBRANCES, AND SUCH COMPANY OR
COMPANY SUBSIDIARY HAS GOOD AND VALID TITLE TO SUCH SHARES OF CAPITAL STOCK OR
OTHER EQUITY INTERESTS.
ALL OF SUCH ISSUED AND OUTSTANDING SHARES ARE VALIDLY
ISSUED, FULLY PAID AND NONASSESSABLE AND WERE NOT ISSUED IN VIOLATION OF ANY
PREEMPTIVE OR OTHER SIMILAR RIGHTS UNDER ANY PROVISION OF APPLICABLE LAW, THE
CERTIFICATE OF INCORPORATION OR BYLAWS (OR EQUIVALENT CONSTITUTIVE DOCUMENT) OF
SUCH COMPANY SUBSIDIARY OR ANY CONTRACT TO WHICH SUCH COMPANY SUBSIDIARY IS
SUBJECT.
EXCEPT AS SET FORTH IN SECTION 3.04 OF THE DISCLOSURE SCHEDULE, THERE
ARE NO OPTIONS, WARRANTS, CALLS, CONVERTIBLE SECURITIES OR OTHER RIGHTS, OR
OTHER CONTRACTS RELATING TO DIVIDEND OR VOTING RIGHTS OR OTHER INTERESTS IN THE
CAPITAL STOCK OR ANY OTHER EQUITY INTERESTS IN ANY OF THE COMPANY SUBSIDIARIES
OR OBLIGATING THE SELLER, ANY OF ITS AFFILIATES, EITHER OF THE COMPANIES OR ANY
OF THE COMPANY SUBSIDIARIES TO ISSUE, SELL, REDEEM OR REPURCHASE ANY SHARES OF
THE CAPITAL STOCK OR OTHER EQUITY INTEREST OF ANY OF THE COMPANY SUBSIDIARIES,
AND THERE ARE NO SHARES OF CAPITAL STOCK OF ANY OF THE COMPANY SUBSIDIARIES
RESERVED FOR ANY PURPOSE.
EXCEPT FOR EQUITY INTERESTS SET FORTH IN SECTION 3.04
OF THE DISCLOSURE SCHEDULE AND AFTER GIVING EFFECT TO THE PRE-CLOSING TRANSFERS,
THE COMPANIES WILL NOT OWN, DIRECTLY OR INDIRECTLY, ANY EQUITY INTEREST IN ANY
PERSON OTHER THAN THE COMPANY SUBSIDIARIES.
SECTION 3.05.
NO CONFLICT.
ASSUMING THAT ALL CONSENTS, APPROVALS,
AUTHORIZATIONS AND OTHER ACTIONS DESCRIBED IN SECTION 3.06 HAVE BEEN OBTAINED,
ALL FILINGS AND NOTIFICATIONS LISTED IN SECTION 3.06 OF THE DISCLOSURE
19
SCHEDULE HAVE BEEN MADE AND ANY APPLICABLE WAITING PERIOD HAS EXPIRED OR BEEN
TERMINATED, AND EXCEPT AS MAY RESULT FROM ANY FACTS OR CIRCUMSTANCES RELATING
SOLELY TO THE PURCHASERS, THE EXECUTION, DELIVERY AND PERFORMANCE BY THE SELLER
OF THIS AGREEMENT AND THE ANCILLARY AGREEMENTS TO WHICH IT IS A PARTY OR THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY (INCLUDING THE
PRE-CLOSING TRANSFERS) BY THE SELLER DO NOT AND WILL NOT (A) VIOLATE, CONFLICT
WITH OR RESULT IN THE BREACH OF THE CERTIFICATE OF INCORPORATION OR BYLAWS (OR
EQUIVALENT CONSTITUTIVE DOCUMENT) OF THE SELLER, EITHER OF THE COMPANIES OR ANY
OF