(NET OF THE PRO RATA AMOUNTS DEPOSITED IN THE
ESCROW ACCOUNT AND THE REPRESENTATIVE ACCOUNT) AS PROVIDED IN SECTION 1.5, AND
THE RIGHT TO PARTICIPATE PRO RATA IN DISTRIBUTIONS OF ANY REMAINING AMOUNTS OF
ESCROW CASH AND AMOUNTS IN THE REPRESENTATIVE ACCOUNT.
THE COMPANY SHALL GIVE
PARENT PROMPT NOTICE OF ANY DEMANDS FOR PAYMENT RECEIVED BY THE COMPANY FROM A
PERSON ASSERTING APPRAISAL RIGHTS, AND PARENT SHALL HAVE THE RIGHT TO
PARTICIPATE IN ALL NEGOTIATIONS AND PROCEEDINGS WITH RESPECT TO SUCH DEMANDS.
THE COMPANY SHALL NOT, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF PARENT, MAKE ANY
PAYMENT WITH RESPECT TO, OR SETTLE OR OFFER TO SETTLE, ANY SUCH DEMANDS.
(B)
AS USED HEREIN, "DISSENTING SHARES" MEANS ANY SHARES OF COMPANY
COMMON STOCK HELD BY STOCKHOLDERS OF THE COMPANY WHO ARE ENTITLED TO APPRAISAL
RIGHTS UNDER THE CGCL, AND WHO HAVE PROPERLY EXERCISED, PERFECTED AND NOT
SUBSEQUENTLY WITHDRAWN OR LOST OR WAIVED THEIR RIGHTS TO DEMAND PAYMENT WITH
RESPECT TO THEIR SHARES IN ACCORDANCE WITH THE CGCL.
9
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Subject to the exceptions and other disclosures set forth in a disclosure
schedule of the Company to be delivered by the Company on or following execution
of this Agreement pursuant to Section 5.23 (the "Company Schedule"), the Company
hereby represents and warrants to Parent and Merger Sub, as follows:
2.1
ORGANIZATION AND QUALIFICATION.
(A)
THE COMPANY IS A CORPORATION
DULY INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
STATE OF CALIFORNIA AND HAS THE REQUISITE CORPORATE POWER AND AUTHORITY TO OWN,
LEASE AND OPERATE ITS ASSETS AND PROPERTIES AND TO CARRY ON ITS BUSINESS AS IT
IS NOW BEING CONDUCTED.
THE COMPANY IS IN POSSESSION OF ALL FRANCHISES, GRANTS,
AUTHORIZATIONS, LICENSES, PERMITS, EASEMENTS, CONSENTS, CERTIFICATES, APPROVALS
AND ORDERS ("APPROVALS") NECESSARY TO OWN, LEASE AND OPERATE THE PROPERTIES IT
PURPORTS TO OWN, OPERATE OR LEASE AND TO CARRY ON ITS BUSINESS AS IT IS NOW
BEING CONDUCTED, EXCEPT WHERE THE FAILURE TO HAVE SUCH APPROVALS WOULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT ON THE COMPANY.
COMPLETE AND CORRECT COPIES OF THE ARTICLES OF
INCORPORATION AND BY-LAWS (COLLECTIVELY REFERRED TO HEREIN AS "CHARTER
DOCUMENTS") OF THE COMPANY, AS AMENDED AND CURRENTLY IN EFFECT, HAVE BEEN
HERETOFORE DELIVERED TO PARENT OR PARENT'S COUNSEL.
THE COMPANY IS NOT IN
VIOLATION OF ANY OF THE PROVISIONS OF THE COMPANY'S CHARTER DOCUMENTS.
(B)
THE COMPANY IS DULY QUALIFIED OR LICENSED TO DO BUSINESS AS A
FOREIGN CORPORATION AND IS IN GOOD STANDING IN EACH JURISDICTION WHERE THE
CHARACTER OF THE PROPERTIES OWNED, LEASED OR OPERATED BY IT OR THE NATURE OF ITS
ACTIVITIES MAKES SUCH QUALIFICATION OR LICENSING NECESSARY, EXCEPT FOR SUCH
FAILURES TO BE SO DULY QUALIFIED OR LICENSED AND IN GOOD STANDING THAT WOULD
NOT, INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT ON THE COMPANY.
EACH JURISDICTION IN WHICH THE COMPANY IS SO
QUALIFIED OR LICENSED IS LISTED