NON-INFRINGEMENT OR PROJECTED FINANCIAL RESULTS, AND ANY
SUCH OTHER REPRESENTATIONS OR WARRANTIES OR GUARANTEES ARE HEREBY EXPRESSLY
DISCLAIMED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT OR ANY AGREEMENT OR CERTIFICATE DELIVERED PURSUANT TO THIS
AGREEMENT, THE SELLER IS GIVING NO ASSURANCES THAT ANY MANUFACTURER, SUPPLIER,
LESSOR, CUSTOMER, OR OTHER PARTY WITH WHICH THE SELLERS OR THE COMPANY HAS A
RELATIONSHIP WILL CONTINUE ON AND AFTER THE CLOSING TO MAINTAIN ITS RELATIONSHIP
REGARDING THE COMPANY AND ITS BUSINESS WITH THE BUYER OR THE COMPANY OR MAINTAIN
SUCH RELATIONSHIP ON THE SAME TERMS THAT IT IS NOW CONDUCTED WITH THE SELLERS
AND THE COMPANY.
IN CONNECTION WITH THE BUYER'S INVESTIGATION OF THE COMPANY, THE COMPANY
SHARES, THE PURCHASED INTELLECTUAL PROPERTY, AND THE PURCHASED REAL ESTATE, THE
BUYER HAS RECEIVED CERTAIN ESTIMATES, PROJECTIONS, AND OTHER FORECASTS REGARDING
THE COMPANY'S FUTURE RESULTS OF OPERATIONS AND FINANCIAL CONDITION. THE BUYER
ACKNOWLEDGES THAT THERE ARE UNCERTAINTIES
15
INHERENT IN ATTEMPTING TO MAKE SUCH ESTIMATES, PROJECTIONS AND OTHER FORECASTS
AND THAT THE BUYER IS FAMILIAR WITH SUCH UNCERTAINTIES. ACCORDINGLY, EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY AGREEMENT OR CERTIFICATE DELIVERED
PURSUANT TO THIS AGREEMENT, THE SELLERS ARE NOT MAKING ANY REPRESENTATION OR
WARRANTY WITH RESPECT TO SUCH ESTIMATES, PROJECTIONS, AND OTHER FORECASTS
(INCLUDING THE REASONABLENESS OF THE ASSUMPTIONS UNDERLYING SUCH ESTIMATES,
PROJECTIONS, AND FORECASTS OR THAT SUCH ESTIMATES, PROJECTIONS, AND FORECASTS
WILL BE ACHIEVED).
(b) Representations and Warranties of the Buyer. Except as set forth in
Annex 2 attached hereto, the Buyer represents and warrants to the Sellers that
the statements contained in this §3(b) are correct and complete as of the date
of this Agreement and will be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were substituted for the date of
this Agreement throughout this §3(b)).
(i) Organization of the Buyer. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(ii) Authorization of Transaction. The Buyer has full corporate power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of the Buyer, enforceable in accordance with its terms and
conditions. The Buyer need not give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or governmental
agency or other person in order to consummate the transactions contemplated by
this Agreement.
(iii) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(A) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject or any provision of
its charter or bylaws or (B) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the