of any Encumbrance upon any of their Assets or give rise to any
Purchase Right or (c) assuming the receipt of all consents, approvals, waivers
and authorizations and the making of notices and filings set forth on Schedule
4.6 of the Buyer Disclosure Schedule with respect to Government Entities or
Self-Regulatory Organizations or required to be made or obtained by Seller,
violate or result in a breach of or constitute a default under any Law to which
Buyer, Parent or any of Parent's Affiliates is subject, or under any Parent
Governmental Authorization, other than, in the case of clauses (b) and (c),
conflicts, breaches, terminations, defaults, cancellations, accelerations,
losses, violations or Encumbrances that would not, individually or in the
aggregate, reasonably be expected to have a Parent Material Adverse Effect.
SECTION 4.8
BINDING EFFECT. THIS AGREEMENT AND EACH OF THE ANCILLARY
AGREEMENTS DATED THE DATE HEREOF IS, AND EACH OTHER ANCILLARY AGREEMENT WILL
CONSTITUTE, WHEN EXECUTED AND DELIVERED BY BUYER AND EACH AFFILIATE OF BUYER
PARTY TO SUCH AGREEMENTS AND BY SELLER AND THE OTHER PARTIES THERETO, A VALID
AND LEGALLY BINDING OBLIGATION OF BUYER AND EACH AFFILIATE OF BUYER PARTY TO
SUCH AGREEMENTS, ENFORCEABLE AGAINST BUYER AND EACH SUCH AFFILIATE IN ACCORDANCE
WITH THEIR RESPECTIVE TERMS.
SECTION 4.9
FINANCIAL STATEMENTS.
(A)
SET FORTH ON SCHEDULE 4.9(A) OF THE BUYER DISCLOSURE SCHEDULE IS A
COPY OF THE CONSOLIDATED AUDITED BALANCE SHEETS AND AUDITED STATEMENTS OF
INCOME, STOCKHOLDERS' EQUITY AND CASH FLOWS FOR PARENT (AND ITS PREDECESSORS IN
INTEREST, AS THE CASE MAY BE) AND ITS SUBSIDIARIES FOR THE FISCAL YEARS ENDED
DECEMBER 31, 2002, DECEMBER 31, 2003 AND DECEMBER 31, 2004 (THE "PARENT AUDITED
FINANCIAL STATEMENTS"). THE PARENT AUDITED FINANCIAL STATEMENTS HAVE BEEN
PREPARED FROM THE BOOKS AND RECORDS OF PARENT IN ACCORDANCE WITH GAAP
CONSISTENTLY APPLIED, AND FAIRLY PRESENT, IN ALL MATERIAL RESPECTS, THE
FINANCIAL CONDITION AND RESULTS OF OPERATIONS AND CASH FLOWS OF PARENT AS OF THE
DATES THEREOF OR THE PERIODS THEN ENDED.
(B)
THE CHIEF EXECUTIVE OFFICER AND THE CHIEF FINANCIAL OFFICER OF
PARENT HAVE DISCLOSED, BASED ON THEIR MOST RECENT EVALUATION, TO PARENT'S
AUDITORS AND THE AUDIT COMMITTEE OF PARENT'S BOARD OF DIRECTORS (I) ALL
SIGNIFICANT DEFICIENCIES IN THE DESIGN OR OPERATION OF INTERNAL CONTROLS THAT
COULD ADVERSELY AFFECT PARENT'S OR ANY OF PARENT'S AFFILIATES' ABILITY TO
RECORD, PROCESS, SUMMARIZE AND REPORT FINANCIAL DATA AND HAVE IDENTIFIED FOR
PARENT'S AUDITORS ANY MATERIAL WEAKNESSES IN THE INTERNAL CONTROLS AND (II) ANY
FRAUD, WHETHER OR NOT MATERIAL, THAT INVOLVES MANAGEMENT OR OTHER EMPLOYEES WHO
HAVE A SIGNIFICANT ROLE IN PARENT'S INTERNAL CONTROLS. COPIES OF ALL DISCLOSURES
DESCRIBED IN THE FOREGOING SENTENCE HAVE BEEN MADE AVAILABLE TO SELLER. PARENT
AND ITS SIGNIFICANT SUBSIDIARIES HAVE ESTABLISHED AND MAINTAIN DISCLOSURE
CONTROLS AND PROCEDURES (AS SUCH TERM IS DEFINED IN RULE 13A-15(E) UNDER THE
EXCHANGE ACT); SUCH DISCLOSURE CONTROLS AND
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PROCEDURES ARE DESIGNED TO ENSURE THAT MATERIAL INFORMATION RELATING TO PARENT,
INCLUDING ITS SIGNIFICANT SUBSIDIARIES, IS MADE KNOWN TO PARENT'S CHIEF
EXECUTIVE OFFICER AND ITS CHIEF FINANCIAL OFFICER BY