"VIRTUAL DATA ROOMS," MANAGEMENT PRESENTATIONS OR IN ANY OTHER FORM IN
EXPECTATION OF, OR IN CONNECTION WITH, THE TRANSACTIONS CONTEMPLATED HEREBY
("EVALUATION MATERIAL"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH
IN THIS ARTICLE II (AS MODIFIED BY THE SCHEDULES HERETO), SELLERS AND THE MDL
GROUP COMPANIES HEREBY DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY
REPRESENTATIONS, WARRANTIES, PROJECTIONS, FORECASTS, STATEMENTS OR INFORMATION
MADE, COMMUNICATED OR FURNISHED (ORALLY OR IN WRITING) TO BUYER AND
24
ITS REPRESENTATIVES.
SELLERS AND MDL GROUP COMPANIES MAKE NO REPRESENTATIONS OR
WARRANTIES TO BUYER REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE MDL
GROUP COMPANIES OR THE BUSINESS.
THE DISCLOSURE OF ANY MATTER OR ITEM IN ANY
SCHEDULE HERETO SHALL NOT BE DEEMED TO CONSTITUTE AN ACKNOWLEDGMENT THAT ANY
SUCH MATTER IS REQUIRED TO BE DISCLOSED.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
SECTION 3.1
ORGANIZATION.
BUYER IS A DELAWARE CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF DELAWARE.
BUYER HAS ALL REQUISITE CORPORATE POWER AND AUTHORITY TO OWN, LEASE AND OPERATE
ITS PROPERTIES AND TO CARRY ON ITS BUSINESS AS IS NOW BEING CONDUCTED.
SECTION 3.2
AUTHORIZATION, VALIDITY OF AGREEMENT.
BUYER HAS FULL
CORPORATE POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND THE
COLLATERAL AGREEMENTS TO WHICH IT IS A PARTY AND TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY.
THE EXECUTION, DELIVERY AND PERFORMANCE BY
BUYER OF THIS AGREEMENT AND THE COLLATERAL AGREEMENTS, AND THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, HAVE BEEN DULY AUTHORIZED BY
ITS BOARD OF DIRECTORS AND NO OTHER CORPORATE ACTION ON THE PART OF BUYER IS
NECESSARY TO AUTHORIZE THE EXECUTION AND DELIVERY BY BUYER OF THIS AGREEMENT OR
THE COLLATERAL AGREEMENTS AND THE CONSUMMATION BY IT OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
THIS AGREEMENT HAS BEEN (AND THE COLLATERAL
AGREEMENTS WILL BE) DULY EXECUTED AND DELIVERED BY BUYER, AND, ASSUMING DUE AND
VALID AUTHORIZATION, EXECUTION AND DELIVERY THEREOF BY SELLER, THIS AGREEMENT
CONSTITUTES (AND THE COLLATERAL AGREEMENTS WHEN EXECUTED AND DELIVERED WILL
CONSTITUTE) THE LEGAL, VALID AND BINDING OBLIGATION OF BUYER, ENFORCEABLE
AGAINST BUYER IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EXCEPT THAT (I) SUCH
ENFORCEMENT MAY BE SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR OTHER SIMILAR LAWS, NOW OR HEREAFTER IN EFFECT, AFFECTING
CREDITORS' RIGHTS GENERALLY AND (II) THE REMEDY OF SPECIFIC PERFORMANCE AND
INJUNCTIVE AND OTHER FORMS OF EQUITABLE RELIEF MAY BE SUBJECT TO EQUITABLE
DEFENSES AND TO THE DISCRETION OF THE COURT BEFORE WHICH ANY PROCEEDING THEREFOR
MAY BE BROUGHT.
SECTION 3.3
CONSENTS AND APPROVALS; NO VIOLATIONS.
NEITHER THE
EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT OR THE COLLATERAL
AGREEMENTS BY BUYER NOR THE CONSUMMATION BY BUYER OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY WILL:
(I) VIOLATE ANY PROVISION OF THE
CERTIFICATE OF INCORPORATION OF BUYER; (II) RESULT IN A VIOLATION OR BREACH OF,
OR CONSTITUTE (WITH OR WITHOUT DUE NOTICE OR LAPSE OF TIME OR BOTH) A DEFAULT
(OR GIVE RISE TO ANY RIGHT OF