the Company.
Except as contemplated hereby or
in the Contribution Agreement, there are no outstanding Contracts or other
rights to subscribe for or purchase, or Contracts or other obligations to issue,
sell, purchase, exchange or grant any rights to acquire, any Equity Securities
of the Company, and no securities or obligations evidencing such rights are
authorized, issued or outstanding.
Except as contemplated hereby or in the
Contribution Agreement, there are no outstanding Contracts of Parent, Seller or
the Company to repurchase, redeem or otherwise acquire any Equity Securities of
the Company.
The Membership Interests are duly authorized, validly issued,
fully paid and nonassesable and are not subject to, and have not been issued in
violation of, any preemptive rights.
The Company does not have any
subsidiaries, nor does it own any direct or indirect equity or debt interest in
any other Person, nor is it obligated to acquire any such interest.
3.4
Financial Statements; Changes; No Other Liabilities.
(A)
FINANCIAL STATEMENTS.
THE BUSINESS AUDITED FINANCIAL STATEMENTS
THAT ARE ATTACHED HERETO AS SECTION 3.4(A) OF THE SELLER DISCLOSURE SCHEDULE
WERE PREPARED FROM THE BOOKS AND RECORDS OF SELLER IN ACCORDANCE WITH GAAP
APPLIED ON A CONSISTENT BASIS THROUGHOUT THE PERIODS INVOLVED (OTHER THAN AS SET
FORTH THEREIN OR DISCLOSED IN SECTION 3.4(A) OF THE SELLER DISCLOSURE SCHEDULE)
AND PRESENT FAIRLY, IN ALL MATERIAL RESPECTS, THE FINANCIAL CONDITION AND
RESULTS OF OPERATIONS OF THE BUSINESS AS OF THE DATES THEREOF AND FOR THE
RESPECTIVE PERIODS THEREIN INDICATED.
(B)
CERTAIN CHANGES.
EXCEPT AS SET FORTH ON SECTION 3.4(B) OF THE
SELLER DISCLOSURE SCHEDULE, FROM DECEMBER 31, 2006 THROUGH THE DATE HEREOF,
THERE HAS NOT BEEN, OCCURRED OR ARISEN ANY CHANGE IN OR EVENT, FACT OR
CIRCUMSTANCE WITH RESPECT TO THE BUSINESS OR THE COMPANY THAT HAS HAD A MATERIAL
ADVERSE EFFECT.
(C)
NO OTHER LIABILITIES.
SELLER HAS NOT INCURRED ANY LIABILITIES
WITH RESPECT TO THE BUSINESS THAT WOULD BE REQUIRED IN ACCORDANCE WITH GAAP TO
BE DISCLOSED IN A BALANCE SHEET OF THE BUSINESS EXCEPT LIABILITIES (I) THAT ARE
REFLECTED IN THE BUSINESS AUDITED FINANCIAL STATEMENTS, (II) THAT ARE SET FORTH
ON SECTION 3.4(C) OF THE SELLER DISCLOSURE SCHEDULE, OR (III) THAT WERE INCURRED
SINCE DECEMBER 31, 2006 IN THE ORDINARY COURSE OF BUSINESS.
14
3.5
Tax Matters.
Except as set forth on Section 3.5 of the Seller
Disclosure Schedule:
(A)
SELLER, WITH RESPECT TO THE BUSINESS, AND THE COMPANY HAVE TIMELY
FILED ALL MATERIAL TAX RETURNS THAT THEY WERE REQUIRED TO FILE.
ALL SUCH TAX
RETURNS WERE CORRECT AND COMPLETE IN ALL MATERIAL RESPECTS.
ALL MATERIAL TAXES
OF SELLER, WITH RESPECT TO THE BUSINESS, AND THE COMPANY (WHETHER OR NOT SHOWN
ON ANY TAX RETURN) HAVE BEEN TIMELY PAID.
ALL MATERIAL TAXES WHICH HAVE BEEN
COLLECTED FROM THIRD PARTIES BY SELLER, WITH RESPECT TO THE BUSINESS, OR THE
COMPANY HAVE BEEN PROPERLY REMITTED TO THE APPROPRIATE TAXING AUTHORITIES.
THERE ARE NO MATERIAL ENCUMBRANCES FOR TAXES UPON ANY OF THE ASSETS OF THE
COMPANY OR THE BUSINESS.
(B)
THERE IS NO MATERIAL