BE, AS APPLICABLE, DULY AND VALIDLY EXECUTED AND DELIVERED BY EACH SELLER AND,
ASSUMING THE DUE AUTHORIZATION, EXECUTION AND DELIVERY HEREOF (AND, IN THE CASE
OF THE ANCILLARY AGREEMENTS TO WHICH THE ACQUIRER IS A PARTY, THEREOF) BY EACH
OTHER PARTY THERETO, EACH CONSTITUTES OR WILL CONSTITUTE, AS APPLICABLE, A
LEGAL, VALID AND BINDING OBLIGATION OF EACH SELLER ENFORCEABLE AGAINST EACH
SELLER IN ACCORDANCE WITH ITS RESPECTIVE TERMS, EXCEPT AS THE ENFORCEABILITY
THEREOF MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCE,
REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS RELATING TO THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND BY GENERAL PRINCIPLES OF EQUITY.
13
SECTION 2.3
EQUITY OWNERSHIP.
EACH SELLER IS
A DIRECT OR INDIRECT WHOLLY OWNED SUBSIDIARY OF THE GUARANTOR.
SECTION 2.4
SELLER FINANCIAL STATEMENTS.
THE
PRO FORMA UNAUDITED INCOME STATEMENTS OF THE SELLERS FOR THE YEARS ENDED
OCTOBER 31, 2007, 2008, AND 2009 (THE "SELLERS' FINANCIAL STATEMENTS"), WHICH
STATEMENTS ARE ATTACHED HERETO AS SECTION 2.4 OF THE DISCLOSURE SCHEDULE, HAVE
BEEN PREPARED ON A BASIS CONSISTENT WITH THE SELLERS' GAAP-BASED ACCOUNTING
POLICIES THROUGHOUT THE PERIODS INDICATED.
THE PRO FORMA UNAUDITED FINANCIAL
STATEMENTS DO NOT CONTAIN FOOTNOTES AND ARE SUBJECT TO NORMAL AND RECURRING
YEAR-END AUDIT ADJUSTMENTS.
THE SELLERS' FINANCIAL STATEMENTS HAVE BEEN
PREPARED FOR PURPOSES OF PROVIDING FINANCIAL INFORMATION REGARDING THE BUSINESS
TO ACQUIRER FOR PURPOSES OF THE TRANSACTIONS CONTEMPLATED HEREBY AND, EXCEPT AS
SET FORTH IN SECTION 2.4 OF THE DISCLOSURE SCHEDULE, REPRESENT THE SELLERS' GOOD
FAITH ESTIMATES OF THE OPERATING RESULTS OF THE SELLERS (IN EACH CASE, TO THE
EXTENT RELATED TO THE BUSINESS, THE PURCHASED ASSETS AND THE ASSUMED
LIABILITIES) DURING THE PERIODS INDICATED THEREIN.
NOTWITHSTANDING ANYTHING
HEREIN TO THE CONTRARY, SELLERS MAKE NO REPRESENTATION WITH RESPECT TO ANY
FINANCIAL INFORMATION FOR THE BUSINESS OTHER THAN THAT THE SELLERS' FINANCIAL
STATEMENTS WERE PREPARED IN GOOD FAITH.
SECTION 2.5
BOOKS AND RECORDS; ORGANIZATIONAL
DOCUMENTS.
THE MINUTE BOOKS AND STOCK RECORD BOOKS AND OTHER SIMILAR RECORDS OF
THE SELLERS HAVE BEEN PROVIDED OR MADE AVAILABLE TO ACQUIRER PRIOR TO THE
EXECUTION OF THIS AGREEMENT, ARE COMPLETE AND CORRECT IN ALL MATERIAL RESPECTS
AND HAVE BEEN MAINTAINED IN ACCORDANCE WITH SOUND AND PRUDENT BUSINESS
PRACTICES.
SUCH MINUTE BOOKS CONTAIN A TRUE AND COMPLETE RECORD OF ALL ACTIONS
TAKEN AT ALL MEETINGS AND BY ALL WRITTEN CONSENTS IN LIEU OF MEETINGS OF THE
DIRECTORS, SHAREHOLDERS AND COMMITTEES OF THE BOARD OF DIRECTORS OF EACH SELLER
FROM JANUARY 1, 2004 THROUGH THE DATE HEREOF.
THE SELLERS HAVE, PRIOR TO THE
EXECUTION OF THIS AGREEMENT, MADE AVAILABLE TO ACQUIRER TRUE AND COMPLETE COPIES
OF THEIR RESPECTIVE ARTICLES OF INCORPORATION AND BYLAWS, BOTH AS AMENDED
THROUGH THE DATE HEREOF.
EACH SELLER IS NOT IN VIOLATION OF ANY PROVISION OF
ITS ARTICLES OF INCORPORATION OR BYLAWS.
SECTION 2.6
NO UNDISCLOSED LIABILITIES.
EXCEPT (I) AS SET FORTH IN SECTION 2.6 OF THE DISCLOSURE SCHEDULE OR IN THE
SELLERS' FINANCIAL STATEMENTS, (II) FOR LIABILITIES INCURRED IN THE ORDINARY
COURSE OF BUSINESS CONSISTENT WITH PAST PRACTICE SINCE OCTOBER 31, 2009, OR
(III) FOR EXCLUDED LIABILITIES, THERE ARE