RESULT IN A BREACH OF, OR GIVE RISE TO A RIGHT OF TERMINATION OF, OR
ACCELERATE THE PERFORMANCE REQUIRED BY THE TERMS OF ANY JUDGMENT, COURT ORDER OR
CONSENT DECREE, OR ANY MATERIAL AGREEMENT, INDENTURE, MORTGAGE OR INSTRUMENT TO
WHICH EITHER PARENT OR MERGER SUB IS A PARTY OR TO WHICH ITS PROPERTY IS
SUBJECT, OR CONSTITUTE A MATERIAL DEFAULT THEREUNDER, EXCEPT WHERE SUCH
CONFLICT, BREACH, RIGHT OF TERMINATION, ACCELERATION OR DEFAULT WOULD NOT HAVE A
MATERIAL ADVERSE EFFECT ON THE BUSINESS OR FINANCIAL CONDITION OF PARENT OR
MERGER SUB, AS THE CASE MAY BE, OR PREVENT PARENT OR MERGER SUB FROM PERFORMING
ITS OBLIGATIONS HEREUNDER.
6.4
AVAILABILITY OF FUNDS.
PARENT WILL HAVE (OR WILL HAVE ACCESS TO)
AT CLOSING ALL FUNDS OR FINANCING IN PLACE NECESSARY TO PAY AND DELIVER TO THE
STOCKHOLDER THE MERGER CONSIDERATION.
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6.5
LITIGATION.
THERE IS NO SUIT, CLAIM, ACTION, PROCEEDING OR
ARBITRATION PENDING OR, TO PARENT'S KNOWLEDGE, THREATENED AGAINST PARENT OR
MERGER SUB WHICH (A) IF ADVERSELY DETERMINED, WOULD REASONABLY BE EXPECTED TO
ADVERSELY AFFECT PARENT'S OR MERGER SUB'S ABILITY TO PERFORM HEREUNDER, OR (B)
SEEKS TO ENJOIN OR OBTAIN DAMAGES IN RESPECT OF THE MERGER AND THE TRANSACTIONS
CONTEMPLATED HEREBY.
6.6
NO BROKERS.
EXCEPT AS SET FORTH IN SCHEDULE 6.6, NEITHER PARENT,
MERGER SUB NOR ANYONE ACTING ON BEHALF OF EITHER OF THEM HAS EMPLOYED ANY BROKER
OR FINDER OR INCURRED ANY LIABILITY FOR ANY BROKERAGE FEES, COMMISSIONS OR
FINDER'S FEES IN CONNECTION WITH THE MERGER AND THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT.
6.7
INVESTMENT.
AT THE EFFECTIVE TIME, BY VIRTUE OF THE MERGER,
PARENT WILL BE ACQUIRING SURVIVING CORPORATION COMMON STOCK FOR ITS OWN ACCOUNT
WITH THE PRESENT INTENTION OF HOLDING THE SURVIVING CORPORATION COMMON STOCK FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH ANY
DISTRIBUTION OF THE SURVIVING CORPORATION COMMON STOCK IN VIOLATION OF ANY
APPLICABLE SECURITIES LAW.
PARENT HAS (A) MADE ITS OWN INQUIRY OF AND
INVESTIGATION INTO, AND HAS COMPLETED ITS OWN ANALYSIS AND EVALUATION OF, THE
COMPANY AND BASED THEREON HAS FORMED AN INDEPENDENT JUDGMENT CONCERNING THE
COMPANY, (B) MADE ALL SUCH REVIEWS AND INSPECTIONS OF THE FINANCIAL CONDITION,
BUSINESS, RESULTS OF OPERATIONS, PROPERTIES, ASSETS AND PROSPECTS OF THE COMPANY
AS IT HAS DEEMED NECESSARY OR APPROPRIATE, (C) BEEN FURNISHED WITH OR GIVEN
ADEQUATE ACCESS TO SUCH INFORMATION ABOUT THE COMPANY AS IT HAS REQUESTED AND
HAS RECEIVED RESPONSES IT DEEMS ADEQUATE AND SUFFICIENT TO ALL SUCH REQUESTS FOR
INFORMATION, AND (D) IN MAKING THE DECISION TO ENTER INTO THIS AGREEMENT AND
CONSUMMATE THE MERGER AND THE TRANSACTIONS CONTEMPLATED HEREBY, RELIED SOLELY ON
PARENT'S OWN INVESTIGATION, ANALYSIS AND EVALUATION OF THE COMPANY AND THE
REPRESENTATIONS AND WARRANTIES OF THE
41
STOCKHOLDER CONTAINED IN SECTION 5 OF THIS AGREEMENT.
IN CONNECTION WITH
PARENT'S INVESTIGATION OF THE COMPANY, PARENT HAS RECEIVED FROM THE COMPANY
CERTAIN PROJECTIONS AND OTHER FORECASTS FOR THE COMPANY, INCLUDING CERTAIN
ESTIMATES AND PLAN AND BUDGET INFORMATION.
PARENT ACKNOWLEDGES THAT THERE ARE
UNCERTAINTIES INHERENT IN ATTEMPTING TO