BEEN PREPARED IN ACCORDANCE
WITH GAAP CONSISTENTLY APPLIED THROUGHOUT THE PERIODS COVERED BY SUCH
STATEMENTS, ARE CONSISTENT WITH THE BOOKS AND RECORDS OF BUYER, AND FAIRLY
PRESENT IN ALL MATERIAL RESPECTS THE SPECIFIED NET WORKING CAPITAL AMOUNTS AND
OPERATING INCOME OF BUYER AS OF AND FOR THE PERIODS PRESENTED.
(B)
BUYER HAS NO LIABILITIES OF THE TYPE AND MAGNITUDE REQUIRED TO BE
REFLECTED OR RESERVED AGAINST ON A CONSOLIDATED BALANCE SHEET OF BUYER PREPARED
IN ACCORDANCE WITH GAAP OR THE NOTES THERETO, EXCEPT LIABILITIES INCURRED AFTER
DECEMBER 31, 2006 IN THE ORDINARY COURSE OF BUSINESS.
31
4.4
PROCEEDINGS; ORDERS.
THERE IS NO PROCEEDING OR ORDER (A) PENDING
OR, TO THE KNOWLEDGE OF BUYER, THREATENED AGAINST OR AFFECTING BUYER, ITS
BUSINESS OR ANY MATERIAL PORTION OF ITS ASSETS; OR (B) THAT CHALLENGES OR THAT
MAY HAVE THE EFFECT OF PREVENTING, MAKING ILLEGAL, DELAYING OR OTHERWISE
INTERFERING WITH ANY OF THE TRANSACTIONS.
BUYER IS NOT SUBJECT TO ANY ORDER OF
ANY GOVERNMENTAL ENTITY, AND THERE ARE NO UNSATISFIED JUDGMENTS AGAINST OR
AFFECTING BUYER, ITS BUSINESS OR ANY MATERIAL PORTION OF ITS ASSETS.
4.5
BROKERS OR FINDERS.
BUYER AND ITS REPRESENTATIVES HAVE INCURRED
NO OBLIGATION OR LIABILITY, FOR BROKERAGE OR FINDERS' FEES OR AGENTS'
COMMISSIONS OR OTHER SIMILAR PAYMENT IN CONNECTION WITH THIS AGREEMENT, OTHER
THAN OBLIGATIONS OR LIABILITIES TO MORGAN JOSEPH & CO., INC. FOR WHICH BUYER
SHALL BE SOLELY RESPONSIBLE.
BUYER AGREES TO INDEMNIFY SELLER AGAINST, AND TO
HOLD SELLER HARMLESS FROM, ANY CLAIMS FOR BROKERAGE OR SIMILAR COMMISSION OR
OTHER COMPENSATION WHICH MAY BE MADE AGAINST SELLER BY ANY THIRD-PARTY IN
CONNECTION WITH THE TRANSACTIONS, WHICH CLAIM IS BASED UPON SUCH THIRD-PARTY
HAVING ACTED AS BROKER, FINDER, INVESTMENT BANKER, ADVISOR, CONSULTANT OR
APPRAISER OR IN ANY SIMILAR CAPACITY ON BEHALF OF BUYER.
4.6
FINANCING.
BUYER HAS, AND AT THE CLOSING WILL HAVE, ACCESS TO
SUFFICIENT CASH OR OTHER SOURCES OF IMMEDIATELY AVAILABLE FUNDS TO ENABLE IT TO
PAY THE CLOSING AMOUNT AND ANY OTHER AMOUNTS TO BE PAID BY IT HEREUNDER OR UNDER
ANY OTHER OF THE ANCILLARY AGREEMENTS.
4.7
CAPITALIZATION.
(A)
THE AUTHORIZED CAPITAL STOCK OF BUYER CONSISTS OF 60,000,000
SHARES OF BUYER COMMON STOCK AND 1,000,000 SHARES OF BUYER PREFERRED STOCK.
AS
OF THE DATE HEREOF:
(I) 23,437,500 SHARES OF BUYER COMMON STOCK WERE ISSUED AND
OUTSTANDING; AND (II) NO SHARES OF BUYER PREFERRED STOCK WERE ISSUED AND
OUTSTANDING.
EXCEPT AS SET FORTH ON SCHEDULE 4.7(A) OR IN THE BUYER SEC
DOCUMENTS, AS OF THE DATE OF THIS AGREEMENT, THERE ARE NO SUBSCRIPTIONS,
OPTIONS, WARRANTS, CALLS, CONVERTIBLE OR EXCHANGEABLE SECURITIES, RIGHTS,
COMMITMENTS OR AGREEMENTS OF ANY CHARACTER PROVIDING FOR THE ISSUANCE OF ANY
SHARES OF BUYER CAPITAL STOCK OR OBLIGATING BUYER TO ISSUE OR SELL ANY SHARES OF
CAPITAL STOCK OF, OR OTHER EQUITY INTERESTS IN, BUYER.
(B)
AS OF THE DATE OF THIS AGREEMENT, EXCEPT AS SET FORTH IN SCHEDULE
4.7(B) OR IN THE BUYER SEC DOCUMENTS, THERE ARE NO OUTSTANDING OBLIGATIONS OF
BUYER TO REPURCHASE, REDEEM OR OTHERWISE ACQUIRE ANY SHARES OF CAPITAL STOCK,
VOTING