TAKEN OR
AGREED TO TAKE ANY ACTION THAT WOULD PREVENT THE EXCHANGE CONTEMPLATED HEREIN
FROM QUALIFYING AS A REORGANIZATION UNDER SECTION 368(A) OF THE CODE.
4.18
FULL DISCLOSURE.
THE REPRESENTATIONS AND
WARRANTIES OF PGMI CONTAINED IN THIS AGREEMENT (AND IN ANY SCHEDULE, EXHIBIT,
CERTIFICATE OR OTHER INSTRUMENT TO BE DELIVERED UNDER THIS AGREEMENT) ARE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS, AND SUCH REPRESENTATIONS AND WARRANTIES DO
NOT OMIT ANY MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS CONTAINED THEREIN,
IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. THERE
IS NO FACT OF WHICH PGMI HAS KNOWLEDGE THAT HAS NOT BEEN DISCLOSED TO HAPS
PURSUANT TO THIS AGREEMENT, INCLUDING THE SCHEDULES HERETO, ALL TAKEN TOGETHER
AS A WHOLE, WHICH HAS HAD OR COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT ON HAPS OR PGMI OR MATERIALLY ADVERSELY AFFECT THE ABILITY OF
PGMI TO CONSUMMATE IN A TIMELY MANNER THE TRANSACTIONS CONTEMPLATED HEREBY.
ARTICLE 5
CONDUCT AND TRANSACTIONS PRIOR TO THE
EFFECTIVE TIME OF THE ACQUISITION
5.01
CONDUCT AND TRANSACTIONS OF HAPS.
DURING THE PERIOD FROM THE DATE
HEREOF TO THE EFFECTIVE DATE, HAPS SHALL:
(A)
EXCEPT AS SET FORTH IN SECTION 2.02(E),
CONDUCT ITS OPERATIONS IN THE ORDINARY COURSE OF BUSINESS, INCLUDING BUT NOT
LIMITED TO, PAYING ALL OBLIGATIONS AS THEY MATURE, COMPLYING WITH ALL APPLICABLE
TAX LAWS, FILING ALL TAX RETURNS REQUIRED TO BE FILED AND PAYING ALL TAXES DUE;
AND
(B)
MAINTAIN ITS RECORDS AND BOOKS OF ACCOUNT IN
A MANNER THAT FAIRLY AND CORRECTLY REFLECTS ITS INCOME, EXPENSES, ASSETS AND
LIABILITIES.
HAPS shall not during such period, except in the ordinary course of business,
without the prior written consent of PGMI:
(C)
EXCEPT AS OTHERWISE CONTEMPLATED OR
REQUIRED BY THIS AGREEMENT, SELL, DISPOSE OF OR ENCUMBER ANY OF ITS PROPERTIES
OR ASSETS;
(D)
EXCEPT AS SET FORTH IN PARAGRAPH
5.01(C) ABOVE, DECLARE OR PAY ANY DIVIDENDS ON SHARES OF ITS CAPITAL STOCK OR
MAKE ANY OTHER DISTRIBUTION OF ASSETS TO THE HOLDERS THEREOF;
(E)
EXCEPT AS SET FORTH IN PARAGRAPH
5.01(D) ABOVE, ISSUE, REISSUE OR SELL, OR ISSUE CAPITAL STOCK OF HAPS OR OPTIONS
OR RIGHTS TO SUBSCRIBE TO, OR ENTER INTO ANY CONTRACT OR COMMITMENT TO ISSUE,
REISSUE OR SELL, ANY SHARES OF ITS CAPITAL STOCK OR ACQUIRE OR AGREE TO ACQUIRE
ANY SHARES OF ITS CAPITAL STOCK;
(F)
EXCEPT AS OTHERWISE CONTEMPLATED AND
REQUIRED BY THIS AGREEMENT, AMEND ITS ARTICLES OF INCORPORATION OR MERGE OR
CONSOLIDATE WITH OR INTO ANY OTHER CORPORATION OR SELL ALL OR SUBSTANTIALLY ALL
OF ITS ASSETS OR CHANGE IN ANY MANNER THE RIGHTS OF ITS CAPITAL STOCK OR OTHER
SECURITIES;
12
(G)
EXCEPT AS CONTEMPLATED OR REQUIRED BY THIS
AGREEMENT, PAY OR INCUR ANY OBLIGATION OR LIABILITY, DIRECT OR CONTINGENT, OF
MORE THAN $1,000;
(H)
INCUR ANY INDEBTEDNESS FOR BORROWED MONEY,
ASSUME, GUARANTEE, ENDORSE OR OTHERWISE BECOME RESPONSIBLE FOR OBLIGATIONS OF
ANY OTHER PARTY, OR MAKE LOANS OR ADVANCES TO ANY OTHER PARTY;
(I)
MAKE ANY MATERIAL CHANGE IN ITS
INSURANCE COVERAGE;
(J)
INCREASE