This excerpt taken from the MO 10-Q filed Nov 6, 2007.
Representations and Warranties of Buyer
Except as set forth in the corresponding schedule to the disclosure letter delivered to Seller by Buyer on or prior to the date hereof (the Buyer Disclosure Letter) (it being agreed that disclosure of any item in any schedule to the Buyer Disclosure Letter shall also be deemed disclosure with respect to any other Section of this Article IV to which the relevance of such item is reasonably apparent), Buyer hereby represents and warrants to Seller as set forth in this Article IV:
Section 4.1. Incorporation; Authorization; etc. (a) Buyer is a corporation duly organized and validly existing under the laws of the Commonwealth of Virginia. Buyer (i) has the requisite corporate power and authority to own its properties and assets and to carry on its business as it is now being conducted and (ii) is in good standing and is duly qualified to transact business in each other jurisdiction in which the nature of property owned or leased by it or the conduct of its business requires it to be so qualified, except where the failure to be in good standing or to be duly qualified to transact business would not, individually or in the aggregate, have or reasonably be expected to have a material adverse effect on the ability of Buyer to consummate the Stock Purchase or would otherwise prevent the performance of the obligations of Buyer under this Agreement (a Buyer Material Adverse Effect).
(b) Buyer has the requisite corporate power to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Buyer of this Agreement, the performance by Buyer of its obligations hereunder and the consummation by Buyer of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of Buyer, and no other corporate proceedings on the part of Buyer, its Board of Directors or stockholder(s) are necessary therefor. This Agreement has been duly executed and delivered by Buyer.
(c) The execution, delivery and performance of this Agreement will not (i) violate any provision of Buyers certificate of incorporation or by-laws, (ii) violate any provision of, or be an event that is (or with the passage of time will result in) a violation of, or result in the acceleration of or entitle any party to accelerate or exercise (whether after the giving of notice or lapse of time or both) any obligation or right under, or result in the imposition of any Lien upon or the creation of a security interest in any shares of capital stock of Buyer or its Subsidiaries or any of Buyers assets or properties pursuant to, any agreement, instrument, order, arbitration award, judgment or decree to which Buyer or any of its Subsidiaries is a party or by which any of them is bound, or (iii) violate or conflict with any other restriction of any kind or character to which Buyer or any of its Subsidiaries is subject, that, in the case of clauses (ii) or (iii) would, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect. Assuming the due execution of this Agreement by Seller and the Company, this Agreement constitutes the legal, valid and binding obligations of Buyer, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors rights and remedies generally and to general principles of equity. At the Closing, the Escrow Agreement will be duly executed and delivered by Buyer and, assuming the due execution and delivery thereof by the other parties thereto, at the Closing the Escrow Agreement will constitute the legal, valid and binding obligations of Buyer, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors rights and remedies generally and to general principles of equity.
Section 4.2. Licenses, Approvals, Other Authorizations, Consents, Reports, etc. Schedule 4.2 to the Buyer Disclosure Letter contains a list of all registrations, filings, applications, notices, consents, approvals, orders, qualifications and waivers required to be made, filed,
given or obtained by Buyer or any of its Affiliates with, to or from any Person in connection with the consummation of the Stock Purchase and of the other obligations of Buyer under this Agreement except for those the failure to make, file, give or obtain which would not, individually or in the aggregate, have or reasonably be expected to have a Buyer Material Adverse Effect.
Section 4.3. Brokers, Finders, etc. Except for the services of the Buyer Financial Advisor, no broker, finder or investment banker is entitled to any brokerage, finders or other similar fee, commission or expenses in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer. Buyer is solely responsible for such fees and expenses of the Buyer Financial Advisor.
Section 4.4. Acquisition of Shares for Investment. Buyer is acquiring the Shares for investment and not with a view to, or for sale in connection with, any distribution thereof. Buyer acknowledges that the Shares are not registered under the Securities Act or any applicable state securities Laws, and that such Shares may not be transferred or sold except pursuant to the registration provisions of the Securities Act and applicable state securities laws or pursuant to an applicable exemption therefrom. Buyer (either alone or together with its advisors) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Shares and is capable of bearing the economic risks of such investment.
Section 4.5. Financial Capability. Buyer has, and as of the Closing Date will have, sufficient cash on hand and/or cash available to it to pay the Purchase Price and otherwise consummate the Stock Purchase.
Section 4.6. Non-Reliance. Buyer acknowledges that the representations and warranties set forth in Article III and Article VII, and the representations and warranties of Seller set forth in Article 13 of the Escrow Agreement and in Article 2 of the Non-Competition and Non-Solicitation Agreement. constitute the sole and exclusive representations and warranties of Seller and the Company to Buyer in connection with the transactions contemplated hereby, and Buyer acknowledges and agrees that Seller and the Company are not making any representation or warranty whatsoever, express or implied, beyond those expressly given in this Agreement, the Escrow Agreement or the Non-Competition and Non-Solicitation Agreement, including any implied warranty as to condition, merchantability, or suitability as to any of the assets of the Business. Buyer further acknowledges and agrees that any estimates, budgets, projections, forecasts or other predictions that may have been provided to Buyer or any of its representatives are not representations or warranties of Seller and the Company or guarantees of performance and that actual results may vary substantially from any such estimates, budgets, projections, forecasts or other predictions. Buyer further acknowledges and agrees that (a) except and solely to the extent of the representations and warranties in Article III and Article VII, Seller and the Company have made no representation or warranty either express or implied as to the accuracy or completeness of any information regarding the Business Entities and the Business furnished or made available to Buyer and/or its representatives, and (b) except with respect to the representations and warranties in Article III and Article VII, Buyer shall have no claim or right to indemnification pursuant to Articles VII or IX with respect to any information, documents or materials furnished by Seller and the Company, any of their Affiliates or any of their respective representatives to Buyer, in any management presentation, information, due diligence response, supplemental information, or
other materials or information furnished in connection with the transactions contemplated hereby. Notwithstanding the foregoing provisions of this Section 4.6, nothing herein is intended to or shall limit or otherwise restrict any claim by or right of Buyer with respect to or arising from any intentional misrepresentation or fraud.