MAKE SUCH PROJECTIONS, FORECASTS,
ESTIMATES, PLANS AND BUDGETS, THAT PARENT IS FAMILIAR WITH SUCH UNCERTAINTIES
AND THAT PARENT IS TAKING FULL RESPONSIBILITY FOR MAKING ITS OWN EVALUATION OF
THE ADEQUACY AND ACCURACY OF ALL PROJECTIONS, FORECASTS, ESTIMATES, PLANS AND
BUDGETS SO FURNISHED TO IT (INCLUDING THE REASONABLENESS OF THE ASSUMPTIONS
UNDERLYING SUCH PROJECTIONS, FORECASTS, ESTIMATES, PLANS AND BUDGETS).
PARENT
ACKNOWLEDGES THAT THE STOCKHOLDER MAKES NO REPRESENTATION OR WARRANTY WITH
RESPECT TO SUCH PROJECTIONS, FORECASTS, ESTIMATES, PLANS AND BUDGETS (INCLUDING
THE REASONABLENESS OF SUCH ASSUMPTIONS AS PROVIDED ABOVE) AND THAT PARENT WILL
NOT ASSERT ANY CLAIM AGAINST EITHER THE COMPANY, THE STOCKHOLDER OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, CONSULTANTS,
COUNSEL, ACCOUNTANTS, INVESTMENT BANKERS OR REPRESENTATIVES, OR HOLD ANY SUCH
PERSONS LIABLE, WITH RESPECT THERETO, EXCEPT, IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT, WITH RESPECT TO THE REPRESENTATIONS EXPRESSLY MADE IN THIS
AGREEMENT.
6.8
NO LIABILITIES.
EACH OF PARENT AND MERGER SUB WERE FORMED SOLELY
FOR THE PURPOSE OF CONSUMMATING THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
NEITHER PARENT NOR MERGER SUB HAVE, AS OF THE DATE HEREOF OR AS OF
THE CLOSING DATE, ANY ASSETS OR LIABILITIES.
SECTION 7
ADDITIONAL PROVISIONS REGARDING
REPRESENTATIONS AND WARRANTIES
7.1
LIMITATION; SURVIVAL.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NO
PARTY HAS MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT
TO THE CONSUMMATION OF THE MERGER AND THE TRANSACTIONS CONTEMPLATED HEREBY AND
ALL IMPLIED WARRANTIES, WHETHER ARISING
42
BY LAW OR BY IMPLICATION FROM THE PROVISIONS OF THIS AGREEMENT, ARE HEREBY
EXPRESSLY DISCLAIMED.
THE REPRESENTATIONS AND WARRANTIES HEREIN AND THE
OBLIGATIONS OF THE PARTIES WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES
HEREIN SHALL SURVIVE THE EFFECTIVE TIME FOR A PERIOD OF TWO (2) YEARS; PROVIDED,
HOWEVER, THAT THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5.2
(CAPITALIZATION), SECTION 5.3 (OWNERSHIP OF STOCK), SECTION 5.4 (EXECUTION AND
EFFECT OF AGREEMENT), SECTION 5.12 (NO BROKERS) AND SECTION 5.13 (TAX MATTERS)
SHALL SURVIVE THE EFFECTIVE TIME UNTIL THE EXPIRATION OF THE APPLICABLE STATUTE
OF LIMITATIONS.
7.2
RIGHT TO UPDATE SCHEDULES.
THE STOCKHOLDER SHALL HAVE THE RIGHT,
WITHOUT BEING DEEMED TO BE IN BREACH OF ITS REPRESENTATIONS AND WARRANTIES, TO
SUPPLEMENT OR AMEND THE SCHEDULES TO THIS AGREEMENT WITH RESPECT TO ANY MATTER
ARISING AFTER THE DATE HEREOF.
IF PARENT RECEIVES ANY SUCH AMENDED OR
SUPPLEMENTED DISCLOSURES, PARENT SHALL HAVE THE RIGHT TO REVIEW SUCH ITEMS FOR A
PERIOD OF TEN (10) BUSINESS DAYS FROM RECEIPT THEREOF AND SHALL HAVE THE RIGHT
TO OBJECT TO ANY SUCH AMENDED OR SUPPLEMENTED ITEM ON THE BASIS THAT SUCH ITEM
AND THE FACTS UNDERLYING SUCH AMENDED OR SUPPLEMENTED DISCLOSURE MATERIALLY AND
ADVERSELY AFFECTS THE VALUE OF THE BUSINESS.
IF PARENT SO OBJECTS, THEN PARENT
SHALL HAVE THE OPTION TO TERMINATE THIS AGREEMENT (ON TEN (10) BUSINESS DAYS
PRIOR WRITTEN NOTICE DURING WHICH PERIOD THE STOCKHOLDER MAY CURE SUCH
MISREPRESENTATION OR BREACH OF WARRANTY), WHICH TERMINATION, IF ELECTED, SHALL
BE PARENT'S SOLE REMEDY IN RESPECT OF SUCH MISREPRESENTATION.
IN ADDITION, NO
DISCLOSURE AMENDMENT OR SUPPLEMENT MADE HEREUNDER