is the legal,
valid, binding obligation of the parties thereto, enforceable against each party
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditor rights generally or
by general equity principles (regardless of whether enforcement is sought in a
proceeding in equity or at law).
No party to any agreement is in material
breach or default, and no event has occurred that with notice or lapse of time
would constitute a material breach or default, or permit termination,
modification, or acceleration, under the agreement.
4.29
SPYWARE/ADWARE.
TO THE KNOWLEDGE OF MOREX, IT IS NOT AWARE OF ANY
COMPLAINTS OF "ADWARE," "SPYWARE" OR "COOKIE STUFFING" ARISING FROM OR RELATED
TO SERVICES PERFORMED BY MOREX.
MOREX HAS A "ZERO TOLERANCE" POLICY REGARDING
"ADWARE," "SPYWARE" AND "COOKIE STUFFING" AND TAKES COMMERCIALLY REASONABLE
STEPS TO INVESTIGATE THE PRACTICES REGARDING THESE ACTIVITIES BY EACH OF ITS
AFFILIATES.
4.30
MATERIAL INFORMATION.
ALL MATERIAL INFORMATION CONCERNING MOREX
HAS BEEN PROVIDED BY MOREX AND THE MEMBERS TO THK AND MOREX MERGER SUB.
29
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
THK AND MOREX MERGER SUB
The representations, warranties and covenants made by THK and Morex Merger Sub
are made solely for the benefit of the Members and Morex, and should not be
relied on by any other party as accurately describing or reflecting the current
state of THK's business.
In order to induce the Members and Morex to enter into
this Agreement and to consummate the transactions contemplated hereby, THK and
Morex Merger Sub represent and warrant to the Members and Morex as follows:
5.1
ORGANIZATION AND QUALIFICATION.
EACH OF THK AND MOREX MERGER SUB
IS A CORPORATION OR LIMITED LIABILITY COMPANY, AS APPLICABLE, DULY ORGANIZED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS RESPECTIVE STATE OF
INCORPORATION OR ORGANIZATION WITH FULL POWER AND AUTHORITY TO OWN, LEASE AND
OPERATE ITS PROPERTIES AND TO CONDUCT ITS BUSINESS AS NOW CONDUCTED EXCEPT WHERE
FAILURE TO BE SO ORGANIZED, EXISTING AND IN GOOD STANDING WOULD NOT REASONABLY
BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THK OR MOREX MERGER SUB.
EACH
OF THK AND MOREX MERGER SUB IS DULY QUALIFIED OR LICENSED AS A FOREIGN
CORPORATION IN EACH OF THE JURISDICTIONS LISTED ON SCHEDULE 5.1 WHICH ARE THE
ONLY JURISDICTIONS IN WHICH THE FAILURE TO BE SO LICENSED OR QUALIFIED COULD
HAVE A MATERIAL ADVERSE EFFECT ON THK OR MOREX MERGER SUB.
EACH OF THK AND
MOREX MERGER SUB HAS MADE AVAILABLE TO THE MEMBERS AND MOREX TRUE, COMPLETE AND
CORRECT COPIES OF ITS CHARTER DOCUMENTS, AS AMENDED TO DATE.
ALL OF THE ISSUED
AND OUTSTANDING MEMBERSHIP INTERESTS OF MOREX MERGER SUB, OR OTHER EQUITY
INTERESTS IN, MOREX MERGER SUB ARE (A) DULY AUTHORIZED, VALIDLY ISSUED, FULLY
PAID, NON-ASSESSABLE, (B) OWNED, DIRECTLY OR INDIRECTLY, BY THK FREE AND CLEAR
OF ALL LIENS, AND (C) FREE OF ANY RESTRICTION, INCLUDING, WITHOUT LIMITATION,
ANY RESTRICTION WHICH PREVENTS THE PAYMENT OF DIVIDENDS TO THK, OR OTHERWISE
RESTRICTS THE RIGHT TO