EVENT" SHALL
MEAN A SALE BY BUYER OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF THE BUSINESS
TO A THIRD PARTY UNAFFILIATED WITH THE BUYER.
2.08
ALLOCATION OF PURCHASE PRICE.
(A)
AS SOON AS PRACTICABLE AFTER THE CLOSING, BUYER SHALL DELIVER TO
SELLER A STATEMENT (THE "ALLOCATION STATEMENT"), SETTING FORTH THE VALUE OF THE
PURCHASED ASSETS AND OF THE COVENANT NOT TO COMPETE DESCRIBED IN SECTION 5.04
HEREOF, WHICH SHALL BE USED FOR THE ALLOCATION OF THE PURCHASE PRICE AND THE
ASSUMED LIABILITIES AMONG THE PURCHASED ASSETS AND THE COVENANT NOT TO COMPETE
(THE ALLOCATION SHALL BE MADE IN ACCORDANCE WITH ALL APPLICABLE PROVISIONS OF
THE CODE AND ANY APPLICABLE STATE OR LOCAL LAW).
(B)
EXCEPT AS REQUIRED BY LAW, SELLER AND BUYER AGREE TO REPORT AN
ALLOCATION OF SUCH PURCHASE PRICE AMONG THE PURCHASED ASSETS AND THE COVENANT
NOT TO COMPETE IN A MANNER ENTIRELY CONSISTENT WITH THE ALLOCATION, AND AGREE TO
ACT IN ACCORDANCE WITH SUCH ALLOCATION STATEMENT IN THE PREPARATION OF FINANCIAL
STATEMENTS AND FILING OF ALL TAX RETURNS. EACH PARTY SHALL NOTIFY THE OTHER
PARTY IF IT RECEIVES NOTICE THAT THE IRS OR OTHER GOVERNMENTAL AGENCY PROPOSES
ANY ALLOCATION DIFFERENT THAN THAT SET FORTH IN THE ALLOCATION STATEMENT.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in the disclosure schedules dated as of the date hereof and
delivered herewith to Buyer, (which disclosure schedules identify the section
and subsection to which each disclosure therein relates), Seller hereby
represents and warrants to Buyer as of the date hereof that:
3.01
CORPORATE EXISTENCE AND POWER. SELLER IS A CORPORATION DULY
INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS
JURISDICTION OF INCORPORATION, AND HAS ALL CORPORATE POWERS AND ALL GOVERNMENTAL
LICENSES, AUTHORIZATIONS, CONSENTS AND APPROVALS REQUIRED TO CARRY ON THE
BUSINESS AS NOW CONDUCTED. SELLER IS DULY QUALIFIED TO DO BUSINESS AS A FOREIGN
CORPORATION AND IS IN GOOD STANDING IN EACH JURISDICTION WHERE THE CHARACTER OF
THE
12
PROPERTY OWNED OR LEASED BY IT OR THE NATURE OF ITS ACTIVITIES MAKES SUCH
QUALIFICATION NECESSARY, EXCEPT FOR THOSE JURISDICTIONS WHERE THE FAILURE TO BE
SO QUALIFIED WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, HAVE A MATERIAL
ADVERSE EFFECT. SELLER HAS HERETOFORE DELIVERED TO BUYER TRUE AND COMPLETE
COPIES OF THE CORPORATE CHARTER AND BYLAWS OF SELLER AS CURRENTLY IN EFFECT.
3.02
CORPORATE AUTHORIZATION. THE EXECUTION, DELIVERY AND PERFORMANCE BY
SELLER OF THIS AGREEMENT AND EACH OF THE ANCILLARY AGREEMENTS, AND THE
CONSUMMATION BY SELLER OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY ARE
WITHIN SELLER'S CORPORATE POWERS AND HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY
CORPORATE ACTION ON THE PART OF SELLER. EACH OF THIS AGREEMENT AND EACH
ANCILLARY AGREEMENT TO WHICH SELLER IS A PARTY HAS BEEN DULY EXECUTED AND
DELIVERED BY SELLER AND CONSTITUTES A VALID AND BINDING AGREEMENT OF SELLER,
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
3.03
GOVERNMENTAL AUTHORIZATION; CONSENTS.
(A)
THE EXECUTION, DELIVERY AND PERFORMANCE BY SELLER OF THIS
AGREEMENT AND EACH OF THE ANCILLARY AGREEMENTS TO