SO
QUALIFY WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE BUSINESS.
EACH OF SELLER
AND XCEL JAPAN HAS MADE AVAILABLE TO BUYER COPIES OF ITS ORGANIZATIONAL
DOCUMENTS, AS CURRENTLY IN EFFECT.
3.2
AUTHORITY; NO CONFLICT.
(A)
THIS AGREEMENT AND EACH OF THE OTHER
TRANSACTION DOCUMENTS TO WHICH SELLER OR XCEL JAPAN IS A PARTY CONSTITUTES THE
LEGAL, VALID, AND BINDING OBLIGATION OF SELLER OR XCEL JAPAN, AS APPLICABLE,
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT TO THE EXTENT THAT
ENFORCEABILITY MAY BE LIMITED BY (I) APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP, MORATORIUM AND OTHER SIMILAR LAWS RELATING TO OR
AFFECTING THE RIGHTS AND REMEDIES OF CREDITORS GENERALLY AND (II) GENERAL
PRINCIPLES OF EQUITY.
SELLER HAS THE ABSOLUTE AND UNRESTRICTED RIGHT, POWER,
AUTHORITY, AND CAPACITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM ITS
OBLIGATIONS UNDER THIS AGREEMENT. THIS AGREEMENT HAS BEEN DULY AUTHORIZED BY
SELLER AND SELLER AND XCEL JAPAN HAVE TAKEN ALL ACTION REQUIRED BY LAW, ITS
RESPECTIVE CERTIFICATE OF INCORPORATION, BYLAWS OR ANY SIMILAR GOVERNING
INSTRUMENT OR OTHERWISE TO AUTHORIZE THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS.
(B)
EXCEPT AS SET FORTH IN SECTION 3.2 OF THE
DISCLOSURE SCHEDULE, NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND
THE OTHER TRANSACTION DOCUMENTS NOR THE
26
CONSUMMATION OR PERFORMANCE OF ANY OF THE CONTEMPLATED TRANSACTIONS WILL,
DIRECTLY OR INDIRECTLY (WITH OR WITHOUT NOTICE OR LAPSE OF TIME):
(I)
CONTRAVENE, CONFLICT WITH, OR RESULT IN
A VIOLATION OF (A) ANY PROVISION OF THE ORGANIZATIONAL DOCUMENTS OF SELLER OR
XCEL JAPAN, OR (B) ANY RESOLUTION ADOPTED BY THE BOARD OF DIRECTORS OR THE
STOCKHOLDERS OF SELLER OR XCEL JAPAN;
(II)
CONTRAVENE, CONFLICT WITH, OR RESULT IN A
VIOLATION OF, OR GIVE ANY GOVERNMENTAL BODY OR OTHER PERSON THE RIGHT TO,
CHALLENGE ANY OF THE CONTEMPLATED TRANSACTIONS OR TO EXERCISE ANY REMEDY OR
OBTAIN ANY RELIEF UNDER, ANY LEGAL REQUIREMENT OR ANY ORDER TO WHICH SELLER,
XCEL JAPAN OR THE PURCHASED ASSETS MAY BE SUBJECT;
(III)
CONTRAVENE, CONFLICT WITH, OR RESULT IN A
VIOLATION OF ANY OF THE TERMS OR REQUIREMENTS OF, OR GIVE ANY GOVERNMENTAL BODY
THE RIGHT TO REVOKE, WITHDRAW, SUSPEND, CANCEL, TERMINATE, OR MODIFY, ANY
GOVERNMENTAL AUTHORIZATION THAT IS HELD BY SELLER, XCEL JAPAN OR THAT OTHERWISE
RELATES TO THE BUSINESS OR THE PURCHASED ASSETS;
(IV)
CONTRAVENE, CONFLICT WITH, OR RESULT IN A
VIOLATION OR BREACH OF ANY PROVISION OF, OR GIVE ANY PERSON THE RIGHT TO DECLARE
A DEFAULT OR EXERCISE ANY REMEDY UNDER, OR TO ACCELERATE THE MATURITY OR
PERFORMANCE OF, OR TO CANCEL, TERMINATE, OR MODIFY, ANY APPLICABLE CONTRACT; OR
(V)
RESULT IN THE IMPOSITION OR CREATION OF ANY
ENCUMBRANCE UPON OR WITH RESPECT TO ANY OF THE PURCHASED ASSETS.
(C)
EXCEPT AS SET FORTH IN SCHEDULE 2.5(A) AND
SECTION 3.2(C) OF THE DISCLOSURE SCHEDULE, NEITHER SELLER NOR XCEL JAPAN IS OR
WILL BE REQUIRED TO GIVE ANY NOTICE TO OR OBTAIN ANY CONSENT FROM ANY PERSON IN
CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS AGREEMENT