QUESTIONS IT HAS ASKED OF THE COMPANY
ANSWERED TO ITS SATISFACTION;
(H)
SOPHISTICATION.
THE SELLER (I) IS A
SOPHISTICATED PERSON WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AND THE ASSET PURCHASE AGREEMENT; (II) HAS MADE AN INFORMED DECISION
REGARDING ITS ENTRY INTO THIS AGREEMENT AND (III) HAS INDEPENDENTLY AND WITHOUT
RELIANCE UPON THE COMPANY OR ANY OTHER PARTY RELATED TO THE COMPANY, AND BASED
ON SUCH
2
INFORMATION AS THE SELLER HAS DEEMED APPROPRIATE, MADE ITS OWN ANALYSIS AND
DECISION TO ENTER INTO THIS AGREEMENT;
(I)
CONSULTATION WITH COUNSEL.
THE SELLER
(I) FULLY UNDERSTANDS ITS RIGHTS TO DISCUSS ALL ASPECTS OF THIS AGREEMENT WITH
ITS ATTORNEYS, (II) HAS AVAILED ITSELF OF THIS RIGHT TO THE EXTENT IT DESIRED,
(III) HAS CAREFULLY READ AND FULLY UNDERSTANDS ALL OF THE TERMS OF THIS
AGREEMENT, (IV) HAS NOT TRANSFERRED OR ASSIGNED ANY RIGHTS OR CLAIMS THAT IT IS
HEREBY PURPORTING TO RELEASE HEREIN, (V) IS VOLUNTARILY, AND WITH PROPER AND
FULL AUTHORITY, ENTERING INTO THIS AGREEMENT, AND (VI) HAS CONSIDERED ALL OF ITS
RIGHTS AND CLAIMS CAREFULLY BEFORE EXECUTING THIS AGREEMENT;
(J)
BROKERS.
THE SELLER HAS NOT INCURRED,
NOR WILL IT INCUR, DIRECTLY OR INDIRECTLY, ANY LIABILITY FOR BROKERAGE OR
FINDERS' FEES OR AGENTS' COMMISSIONS OR INVESTMENT BANKERS' FEES OR ANY SIMILAR
CHARGES IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
4.
COMPANY REPRESENTATIONS AND
WARRANTIES.
THE COMPANY HEREBY REPRESENTS AND WARRANTS TO THE SELLER AS
FOLLOWS:
(A)
ORGANIZATION AND GOOD STANDING.
THE
COMPANY IS A CORPORATION, DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING
UNDER THE LAWS OF THE STATE OF DELAWARE;
(B)
POWER AND AUTHORITY.
THE COMPANY HAS FULL
POWER, AUTHORITY AND RIGHT TO EXECUTE, DELIVER AND PERFORM THIS AGREEMENT AND
HAS TAKEN ALL NECESSARY ACTION TO AUTHORIZE THE EXECUTION, DELIVERY AND
PERFORMANCE BY IT OF THIS AGREEMENT;
(C)
DUE EXECUTION.
THIS AGREEMENT HAS BEEN
DULY EXECUTED AND DELIVERED BY THE COMPANY, AND IS A LEGAL, VALID AND BINDING
INSTRUMENT ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, EXCEPT
AS SUCH ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY AND OTHER
SIMILAR LAWS RELATING TO THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY AND TO
GENERAL PRINCIPLES OF EQUITY; AND
(D)
NO CONFLICT.
NEITHER THE EXECUTION AND
DELIVERY OF THIS AGREEMENT NOR THE CONSUMMATION OF THE TRANSACTIONS HEREIN
CONTEMPLATED, NOR COMPLIANCE WITH THE PROVISIONS HEREOF, WILL CONFLICT WITH OR
RESULT IN A BREACH OF, OR CONSTITUTE A DEFAULT (WITH NOTICE OR PASSAGE OF TIME
OR BOTH) UNDER ANY PROVISION OF ANY LAW, GOVERNMENTAL RULE, REGULATION,
JUDGMENT, DECREE OR ORDER BINDING ON THE COMPANY OR THE CHARTER OR BYLAWS OF THE
COMPANY OR ANY PROVISION OF ANY MORTGAGE, INDENTURE, CONTRACT, AGREEMENT OR
OTHER INSTRUMENT TO WHICH THE COMPANY IS A PARTY OR BY WHICH IT IS BOUND.
5.
ADDITIONAL AGREEMENTS.
THE SELLER
HEREBY ACKNOWLEDGES, AGREES AND CONFIRMS THAT:
(A)
WAIVER.
THE SELLER HEREBY WAIVES ANY RIGHT
THAT THE UNDERSIGNED MAY HAVE UNDER THE ASSET PURCHASE AGREEMENT (INCLUDING
SECTION 4.14 THEREOF) RELATED TO THE ISSUANCE, REGISTRATION OR RESALE OF ANY