AS AMENDED ("ERISA"), AND THE REGULATIONS AND PUBLISHED
INTERPRETATIONS THEREUNDER: (I) NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES
HAS ENGAGED IN ANY PROHIBITED TRANSACTIONS (AS DEFINED IN SECTION 406 OF ERISA
AND SECTION 4975 OF THE CODE); (II) THE COMPANY AND EACH OF ITS SUBSIDIARIES HAS
MET ALL APPLICABLE MINIMUM FUNDING REQUIREMENTS UNDER SECTION 302 OF ERISA IN
RESPECT TO ITS PLANS; (III) NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES HAS
ANY KNOWLEDGE OF ANY EVENT OR OCCURRENCE WHICH WOULD CAUSE THE PENSION BENEFIT
GUARANTY CORPORATION TO INSTITUTE PROCEEDINGS UNDER TITLE IV OF ERISA TO
TERMINATE ANY EMPLOYEE BENEFIT PLAN(S); NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES HAS ANY FIDUCIARY RESPONSIBILITY FOR INVESTMENTS WITH RESPECT TO
ANY PLAN EXISTING FOR THE BENEFIT OF PERSONS OTHER THAN ITS OR SUCH SUBSIDIARY'S
EMPLOYEES; AND (V) NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES HAS
WITHDRAWN, COMPLETELY OR PARTIALLY, FROM ANY MULTI-EMPLOYER PENSION PLAN SO AS
TO INCUR LIABILITY UNDER THE MULTIEMPLOYER PENSION PLAN AMENDMENTS ACT OF 1980.
12
4.22
DISCLOSURE.
THE COMPANY UNDERSTANDS AND CONFIRMS
THAT THE BUYERS WILL RELY ON THE REPRESENTATIONS AND COVENANTS CONTAINED HEREIN
IN EFFECTING THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS.
ALL REPRESENTATIONS AND WARRANTIES PROVIDED TO THE
BUYERS INCLUDING THE DISCLOSURES IN THE COMPANY'S DISCLOSURE SCHEDULES ATTACHED
HERETO FURNISHED BY OR ON BEHALF OF THE COMPANY, TAKEN AS A WHOLE ARE TRUE AND
CORRECT AND DO NOT CONTAIN ANY UNTRUE STATEMENT OF MATERIAL FACT OR OMIT TO
STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE THEREIN,
IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
NO EVENT OR CIRCUMSTANCE HAS OCCURRED OR INFORMATION EXISTS WITH RESPECT TO THE
COMPANY OR ITS SUBSIDIARIES OR ITS OR THEIR BUSINESSES, PROPERTIES, PROSPECTS,
OPERATIONS OR FINANCIAL CONDITIONS, WHICH, UNDER APPLICABLE LAW, RULE OR
REGULATION, REQUIRES PUBLIC DISCLOSURE OR ANNOUNCEMENT BY THE COMPANY BUT WHICH
HAS NOT BEEN SO PUBLICLY ANNOUNCED OR DISCLOSED.
ARTICLE 5
COVENANTS
5.1
FORM D; BLUE SKY LAWS.
UPON COMPLETION OF
THE CLOSING, THE COMPANY SHALL FILE WITH THE SEC A FORM D WITH RESPECT TO THE
SHARES AS REQUIRED UNDER REGULATION D AND EACH APPLICABLE STATE SECURITIES
COMMISSION AND WILL PROVIDE A COPY THEREOF TO THE BUYERS PROMPTLY AFTER SUCH
FILING.
5.2
USE OF PROCEEDS.
THE COMPANY SHALL USE THE
PROCEEDS FROM THE SALE OF THE SHARES TO COMPLETE THE ACQUISITION.
5.3
EXPENSES.
THE COMPANY SHALL REIMBURSE THE
BUYERS FOR ALL REASONABLE EXPENSES INCURRED BY THEM IN CONNECTION WITH THEIR DUE
DILIGENCE REVIEW OF THE COMPANY AND THE TARGET, AND THE NEGOTIATION,
PREPARATION, EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS AND THE TRANSACTIONS HEREUNDER AND THEREUNDER,
INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND EXPENSES, AND OUT-OF-POCKET
TRAVEL COSTS AND EXPENSES.
5.4
NO INTEGRATION.
THE COMPANY SHALL NOT MAKE
ANY OFFERS OR SALES OF ANY SECURITY (OTHER THAN THE SHARES) UNDER CIRCUMSTANCES
THAT WOULD REQUIRE REGISTRATION OF THE SHARES BEING OFFERED OR SOLD HEREUNDER
UNDER THE