FO » Topics » REPRESENTATIONS AND WARRANTIES OF THE SELLERS

This excerpt taken from the FO 10-Q filed Nov 10, 2008.

REPRESENTATIONS AND WARRANTIES OF THE SELLERS

Each Seller represents and warrants to Buyer, as of the date hereof and as of the Closing Date, as follows:

Section 2.1 Corporate and Governmental Authorization.

(a) Such Seller has full power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which such Seller is a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution and delivery by such Seller of this Agreement and each of the Ancillary Agreements to which such Seller is a party, the performance of such Seller’s obligations hereunder and thereunder, and the consummation by such Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all requisite corporate action of such Seller. Such Seller has duly executed and delivered this Agreement and, on the Closing Date, will have duly executed and delivered each of the Ancillary Agreements to which such Seller is a party. This Agreement constitutes, and each such Ancillary Agreement when so executed and delivered will constitute, the legal, valid and binding obligation of such Seller, enforceable against such Seller in accordance with its terms.

(b) The execution, delivery and performance by such Seller of this Agreement and each of the Ancillary Agreements to which such Seller is a party, and the consummation of the transactions contemplated hereby and thereby, require no action by or in respect of, or filing

 

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with, any Governmental Authority other than (i) compliance with any applicable requirements of the HSR Act and (ii) any actions or filings under any Laws the absence of which would not, individually or in the aggregate, materially impair the ability of such Seller to consummate the transactions contemplated hereby or thereby or materially impair the ability of the Company to continue to conduct the Business following the Closing in a manner consistent with the conduct of the Business prior to the Closing.

Section 2.2 Non-Contravention. The execution, delivery and performance by such Seller of this Agreement and each of the Ancillary Agreements to which such Seller is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not (i) contravene, conflict with, or result in any violation or breach of, any provision of the Organizational Documents of the Company or such Seller, (ii) assuming compliance with the matters referred to in Section 2.1(b), contravene, conflict with or result in a violation or breach of, any provision of any Laws the violation or breach of which would, in the aggregate, materially impair the ability of the Company to continue to conduct the Business following the Closing in a manner consistent with the conduct of the Business prior to the Closing or (iii) other than as set forth on Schedule 1.1(a)(ii), require any consent or other action by any Person under, or constitute a default under, any provision of any material agreement or other material instrument to which such Seller or the Company is a party.

Section 2.3 Title. ASCI is the beneficial and record owner, free and clear of any encumbrances, of the Shares and upon delivery of and payment for the Shares at the Closing will sell, transfer, assign and deliver good and valid title to the Shares at the Closing free of encumbrances. There is no person who owns any of the shares of capital stock or other equity interests of the Company or any of its Subsidiaries, other than ASCI. Except as contemplated by this Agreement, there are no outstanding options, warrants or other rights to purchase, obtain or acquire, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any securities of the Company or any of its Subsidiaries and neither the Company or any of its Subsidiaries is obligated to purchase or redeem any securities.

Section 2.4 Financial Statements. Schedule 2.4 contains complete copies of (i) the unaudited consolidated balance sheet of the Company as of December 31, 2007 and the related unaudited consolidated statement of income and unaudited consolidated statement of cash flows for the fiscal year then ended, and (ii) the unaudited consolidated balance sheet of the Company as of June 30, 2008 and the related unaudited consolidated statement of income and unaudited consolidated statement of cash flows for the six month period then ended (collectively, the “Unaudited Financial Statements”). The Unaudited Financial Statements have been derived from the books and records of the Company and its Affiliates.

Section 2.5 Affiliate Transactions. There is no contract, agreement, commitment, lease, sublease, understanding, or other transaction or arrangement of any kind entered into by the Company or any of its Subsidiaries with either of the Sellers or any of their Affiliates that will remain in effect after the Closing Date.

 

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ARTICLE III

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