OF LAWS OF ANY FOREIGN
JURISDICTION.
3.26.
NO FINDER.
EXCEPT AS SET FORTH IN SCHEDULE 3.26,
NEITHER THE COMPANY NOR ANY PERSON ACTING ON ITS BEHALF HAS PAID OR BECOME
OBLIGATED TO PAY ANY FEE OR COMMISSION TO ANY BROKER, FINDER OR INTERMEDIARY FOR
OR ON ACCOUNT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE MERGER
AGREEMENT.
3.27.
DISCLOSURE.
THIS AGREEMENT AND THE SCHEDULES
HERETO (INCLUDING THE REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN AND
THEREIN), WHEN VIEWED COLLECTIVELY, DO NOT CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS
CONTAINED HEREIN OR THEREIN NOT MISLEADING IN LIGHT OF THE CIRCUMSTANCES IN
WHICH THEY WERE MADE.
TO THE KNOWLEDGE OF THE COMPANY, THERE IS NO FACT WHICH
THE COMPANY HAS NOT DISCLOSED TO OPTIONEE OR ITS INTELLECTUAL PROPERTY COUNSEL,
MCCARTER & ENGLISH, LLP, IN WRITING THAT HAS HAD OR WOULD REASONABLY BE EXPECTED
TO HAVE A MATERIAL ADVERSE EFFECT.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF OPTIONEE
As an inducement to the Company to enter into this Agreement and to consummate
the transactions contemplated hereby, Optionee hereby represents and warrants to
the Company and agrees as follows:
4.1.
ORGANIZATION OF OPTIONEE.
OPTIONEE IS A
CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE STATE OF DELAWARE AND HAS FULL CORPORATE POWER AND AUTHORITY TO OWN OR
LEASE AND TO OPERATE AND USE ITS PROPERTIES AND ASSETS AND TO CARRY ON ITS
BUSINESS AS NOW CONDUCTED.
4.2.
AUTHORITY OF OPTIONEE.
(A)
OPTIONEE HAS FULL CORPORATE POWER AND
AUTHORITY TO EXECUTE, DELIVER AND PERFORM THIS AGREEMENT, ALL OF THE OPTIONEE
ANCILLARY AGREEMENTS AND THE MERGER AGREEMENT.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT, THE OPTIONEE ANCILLARY AGREEMENTS AND THE MERGER
AGREEMENT (TOGETHER WITH THE OTHER INSTRUMENTS, DOCUMENTS AND AGREEMENTS
CONTEMPLATED BY OR TO BE EXECUTED IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THE MERGER AGREEMENT) BY OPTIONEE HAVE BEEN DULY AUTHORIZED AND
APPROVED BY OPTIONEE'S BOARD OF DIRECTORS AND DO NOT REQUIRE ANY FURTHER
AUTHORIZATION OR CONSENT OF OPTIONEE OR ITS STOCKHOLDERS.
THIS AGREEMENT HAS
BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY OPTIONEE AND IS THE LEGAL, VALID
AND BINDING AGREEMENT OF OPTIONEE ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, AND
EACH OF THE OPTIONEE ANCILLARY AGREEMENTS HAS BEEN DULY AUTHORIZED BY OPTIONEE
AND UPON EXECUTION AND DELIVERY BY OPTIONEE WILL BE A LEGAL, VALID AND BINDING
OBLIGATION OF OPTIONEE ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, IN EACH CASE
EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR SIMILAR LAWS AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND BY THE EFFECT OF GENERAL PRINCIPLES OF EQUITY
(REGARDLESS OF WHETHER ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT
LAW).
(B)
NEITHER THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, ANY OF THE OPTIONEE ANCILLARY AGREEMENTS OR THE MERGER AGREEMENT, NOR
THE CONSUMMATION OF ANY OF THE
40
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY NOR COMPLIANCE WITH OR FULFILLMENT
OF THE TERMS, CONDITIONS AND