RESULT IN A
BREACH OF ANY PROVISION OF SELLER'S CERTIFICATE OF INCORPORATION OR BY-LAWS;
(II) EXCEPT AS SET FORTH ON SCHEDULE 5.3(A) OF THE DISCLOSURE LETTER, CONFLICT
WITH, CONSTITUTE OR RESULT IN THE MATERIAL BREACH OF ANY TERM, CONDITION OR
PROVISION OF, OR CONSTITUTE A MATERIAL DEFAULT UNDER, RESULT IN OR GIVE RISE TO
ANY RIGHT OF TERMINATION, CANCELLATION OR ACCELERATION WITH RESPECT TO, OR
RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN (OTHER THAN PERMITTED LIENS)
UPON ANY OF THE ACQUIRED ASSETS PURSUANT TO, OR REQUIRE ANY NOTICE UNDER, ANY
NOTE, BOND, MORTGAGE, INDENTURE, CONTRACT OR OTHER INSTRUMENT OR OBLIGATION TO
WHICH SELLER IS A PARTY OR BY WHICH THE BUSINESS IS SUBJECT; OR (III) ASSUMING
THE APPROVALS REFERRED TO IN SECTION 5.3(B) ARE OBTAINED, MATERIALLY VIOLATE ANY
ORDER OR LAW TO WHICH SELLER, THE BUSINESS OR THE ACQUIRED ASSETS ARE SUBJECT.
(B)
OTHER THAN AS SET FORTH ON SCHEDULE 5.3(B) OF THE DISCLOSURE
LETTER, NO NOTICE TO, FILING WITH, AUTHORIZATION OF, EXEMPTION BY OR CONSENT OF
ANY PERSON IS NECESSARY FOR THE CONSUMMATION BY SELLER OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AND THE ANCILLARY AGREEMENTS.
5.4
TITLE.
(A)
SELLER HAS GOOD AND MARKETABLE TITLE TO OR A VALID LEASEHOLD
INTEREST IN EACH ACQUIRED ASSET, FREE AND CLEAR OF ALL LIENS OTHER THAN
PERMITTED LIENS.
EXCEPT AS SET FORTH ON SCHEDULE 5.4 OF THE DISCLOSURE LETTER,
NO PERSON OTHER THAN SELLER OWNS ANY INTEREST IN ANY OF THE ACQUIRED
INTELLECTUAL PROPERTY.
NONE OF SELLER'S AFFILIATES OR SUBSIDIARIES OPERATES THE
BUSINESS OR OWNS ANY ASSETS OR RIGHTS USED IN OR RELATED TO THE BUSINESS.
ALL
TANGIBLE ACQUIRED ASSETS ARE LOCATED AT THE PROPERTY TO BE LEASED BY BUYER UNDER
THE MOUNTAIN VIEW LEASE OR AT THE LOCATIONS SET FORTH ON SCHEDULE 5.4 OF THE
DISCLOSURE LETTER.
NONE OF THE ACQUIRED ASSETS ARE SUBJECT TO OR HELD UNDER ANY
SECURITY, CONDITIONAL SALES OR OTHER TITLE RETENTION CONTRACT.
(B)
NEITHER KAWASAKI HEAVY INDUSTRIES, LTD. NOR ANY OF ITS
SUBSIDIARIES OR AFFILIATES HAS ANY CLAIMS AGAINST SELLER OR ANY OF ITS
SUBSIDIARIES OR AFFILIATES IN CONNECTION WITH THE ACQUIRED ASSETS, THE BUSINESS,
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7
5.5
FINANCIAL CONDITION.
(A)
ATTACHED AS EXHIBIT A TO THE DISCLOSURE LETTER IS A SCHEDULE OF
THE ACQUIRED ASSETS AND ASSUMED LIABILITIES AS OF SEPTEMBER 30, 2006 (THE "ASSET
AND LIABILITY SCHEDULE") AND THE STATEMENT OF INCOME FOR THE BUSINESS FOR THE
SEVEN MONTH PERIOD ENDED JULY 31, 2006 (THE "STATEMENT OF INCOME") (COLLECTIVELY
THE "FINANCIAL STATEMENTS").
EXCEPT AS SET FORTH IN SCHEDULE 5.5(A) OF THE
DISCLOSURE LETTER, THE FINANCIAL STATEMENTS ARE TRUE, CORRECT AND COMPLETE, THE
COMPONENTS OF THE FINANCIAL STATEMENTS AS PRESENTED WERE PREPARED IN ACCORDANCE
WITH ACCOUNTING PRINCIPLES GENERALLY ACCEPTED IN THE UNITED STATES OF AMERICA
("GAAP") AND PRESENT IN ALL MATERIAL RESPECTS THE RESULTS OF OPERATIONS OF THE
BUSINESS AS OF AND FOR THE PERIODS ENDING ON THEIR RESPECTIVE DATES EXCEPT THAT
(I) THE STATEMENT OF INCOME WILL NOT BE FULLY REPRESENTATIVE OF THE RESULTS OF