"STOCKHOLDERS OF
RECORD" AND IS NOT CONSIDERED A "RESIDENT DOMESTIC CORPORATION" FOR PURPOSES OF
§78.411 THROUGH §78.444 OF THE NRS.
4.21
ERISA.
BASED UPON THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, 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WITHDRAWN,
12
COMPLETELY OR PARTIALLY, FROM ANY MULTI-EMPLOYER PENSION PLAN SO AS TO INCUR
LIABILITY UNDER THE MULTIEMPLOYER PENSION PLAN AMENDMENTS ACT OF 1980.
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 SECURITIES 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 SECURITIES 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, AND ANY TRANSACTION,
THE PROCEEDS OF WHICH ARE USED TO REPAY THE DEBT FINANCING, INCLUDING, WITHOUT
LIMITATION,