OF ACCELERATION, TERMINATION OR CANCELLATION OR A LOSS OF
RIGHTS UNDER, OR RESULT IN THE CREATION OR IMPOSITION OF ANY ENCUMBRANCE UPON
ANY OF THE SHARES, UNDER (A) THE RESTATED ARTICLES OF INCORPORATION OR AMENDED
AND RESTATED BYLAWS OF THE SELLER, (B) ANY MATERIAL NOTE, INSTRUMENT, AGREEMENT,
MORTGAGE, LEASE, LICENSE, FRANCHISE, PERMIT OR OTHER AUTHORIZATION, RIGHT,
RESTRICTION OR OBLIGATION TO WHICH THE SELLER IS A PARTY OR THE SHARES ARE
SUBJECT OR BY WHICH THE SELLER IS BOUND, (C) ANY COURT ORDER TO WHICH THE SELLER
IS A PARTY OR ANY OF THE SHARES ARE SUBJECT OR BY WHICH THE SELLER IS BOUND, OR
(D) ANY REQUIREMENTS OF LAWS, RULES OR REGULATIONS AFFECTING THE SELLER OR THE
SHARES OR OTHERWISE APPLICABLE TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
(C)
TITLE TO SHARES.
THE SELLER REPRESENTS AND
WARRANTS TO THE BUYER THAT THE SELLER IS THE SOLE RECORD AND BENEFICIAL OWNER OF
THE SHARES, FREE AND CLEAR OF ALL ENCUMBRANCES, AND THAT THE DELIVERY AND/OR
RELEASE, AS APPLICABLE, OF THE SHARES TO THE BUYER PURSUANT TO THIS AGREEMENT
WILL TRANSFER AND CONVEY GOOD AND VALID TITLE THERETO TO THE BUYER, FREE AND
CLEAR OF ALL ENCUMBRANCES.
THE SELLER REPRESENTS AND WARRANTS TO THE BUYER THAT
THE SHARES CONSTITUTE ALL OF THE EQUITY INTERESTS OF THE BUYER OWNED BY THE
SELLER.
(D)
ECONOMIC RISK; SOPHISTICATION. (I) THE
SELLER REPRESENTS AND WARRANTS THAT IT HAS SUCH KNOWLEDGE AND EXPERIENCE IN
FINANCIAL AND BUSINESS MATTERS THAT IT IS CAPABLE OF EVALUATING THE MERITS AND
RISKS OF THE PROPOSED SALE OF THE SHARES TO THE BUYER AND THAT IT HAS MADE AN
INDEPENDENT DECISION TO SELL THE SHARES TO BUYER BASED ON THE SELLER'S KNOWLEDGE
ABOUT THE BUYER AND ITS BUSINESS AND OTHER INFORMATION AVAILABLE TO THE SELLER,
WHICH IT HAS DETERMINED IS ADEQUATE FOR THAT PURPOSE.
THE SELLER REPRESENTS AND
WARRANTS THAT IT (A) HAS NOT RECEIVED OR RELIED UPON ANY INFORMATION (IN ANY
FORM, WHETHER WRITTEN OR ORAL) FURNISHED BY BUYER OR ON BEHALF OF THE BUYER IN
MAKING THAT DECISION, OR (B) REQUESTED ANY SUCH INFORMATION FROM THE BUYER WHICH
THE BUYER HAS NOT FURNISHED TO THE SELLER.
(II)
THE SELLER REPRESENTS, WARRANTS, ACKNOWLEDGES
AND AGREES THAT THE BUYER AND ITS AFFILIATES, OFFICERS AND DIRECTORS, MAY
POSSESS MATERIAL NON-PUBLIC INFORMATION NOT KNOWN TO THE SELLER REGARDING OR
RELATING TO THE BUYER, INCLUDING, BUT NOT LIMITED TO, INFORMATION CONCERNING THE
BUSINESS, FINANCIAL CONDITION, RESULTS OF OPERATIONS, PROSPECTS OR RESTRUCTURING
PLANS OF THE BUYER, AND THE SELLER REPRESENTS, WARRANTS, ACKNOWLEDGES AND AGREES
THAT THE SELLER HAS NOT RECEIVED OR
2
REQUESTED ANY SUCH INFORMATION, INCLUDING ANY INFORMATION WITH RESPECT TO
BUYER'S FISCAL QUARTER ENDED JUNE 29, 2008, AND AGREES THAT NEITHER THE BUYER
NOR ITS AFFILIATES, OFFICERS OR DIRECTORS SHALL HAVE ANY LIABILITY WHATSOEVER
WITH RESPECT TO THE NONDISCLOSURE OF ANY SUCH MATERIAL NON-PUBLIC INFORMATION,
WHETHER BEFORE OR AFTER THE DATE OF THIS AGREEMENT.
(E)
VALUE OF THE SHARES.
THE SELLER
ACKNOWLEDGES AND CONFIRMS THAT IT IS AWARE THAT THE CLOSING SALE PRICE