SCHEDULES THERETO AND DOCUMENTS INCORPORATED BY
REFERENCE THEREIN BEING HEREINAFTER REFERRED TO AS THE "SEC DOCUMENTS").
THE
COMPANY HAS DELIVERED TO THE BUYERS OR THEIR RESPECTIVE REPRESENTATIVES TRUE,
CORRECT AND COMPLETE COPIES OF THE SEC DOCUMENTS NOT AVAILABLE ON THE EDGAR
SYSTEM.
AS OF THEIR RESPECTIVE DATES, THE SEC DOCUMENTS COMPLIED IN ALL
MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE EXCHANGE ACT AND THE RULES AND
REGULATIONS OF THE SEC PROMULGATED THEREUNDER APPLICABLE TO THE SEC DOCUMENTS,
AND NONE OF THE SEC DOCUMENTS, AT THE TIME THEY WERE FILED WITH THE SEC,
CONTAINED ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITTED TO STATE A MATERIAL
FACT REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH
14
THEY WERE MADE, NOT MISLEADING. AS OF THEIR RESPECTIVE DATES, THE FINANCIAL
STATEMENTS OF THE COMPANY INCLUDED IN THE SEC DOCUMENTS COMPLIED AS TO FORM IN
ALL MATERIAL RESPECTS WITH APPLICABLE ACCOUNTING REQUIREMENTS AND THE PUBLISHED
RULES AND REGULATIONS OF THE SEC WITH RESPECT THERETO.
SUCH FINANCIAL
STATEMENTS HAVE BEEN PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES, CONSISTENTLY APPLIED, DURING THE PERIODS INVOLVED (EXCEPT (I) AS MAY
BE OTHERWISE INDICATED IN SUCH FINANCIAL STATEMENTS OR THE NOTES THERETO, OR
(II) IN THE CASE OF UNAUDITED INTERIM STATEMENTS, TO THE EXTENT THEY MAY EXCLUDE
FOOTNOTES OR MAY BE CONDENSED OR SUMMARY STATEMENTS) AND FAIRLY PRESENT IN ALL
MATERIAL RESPECTS THE FINANCIAL POSITION OF THE COMPANY AS OF THE DATES THEREOF
AND THE RESULTS OF ITS OPERATIONS AND CASH FLOWS FOR THE PERIODS THEN ENDED
(SUBJECT, IN THE CASE OF UNAUDITED STATEMENTS, TO NORMAL YEAR-END AUDIT
ADJUSTMENTS).
(J)
THE FOREGOING REPRESENTATIONS, WARRANTIES, AND AGREEMENTS SHALL
SURVIVE THE CLOSING.
5.
ORGANIC'S REPRESENTATIONS AND WARRANTIES
Organic hereby acknowledges, agrees with and represents and warrants to the
undersigned, that, (except as is set forth on the Company Disclosure Schedule
attached to the Merger Agreement):
(A)
ORGANIZATION, STANDING AND POWER.
ORGANIC IS A CORPORATION DULY
ORGANIZED AND VALIDLY EXISTING IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION IN WHICH IT WAS FORMED, AND IT HAS THE REQUISITE POWER AND
AUTHORITY TO OWN ITS PROPERTIES AND TO CARRY ON ITS BUSINESS AS NOW BEING
CONDUCTED.
(B)
AUTHORITY.
ORGANIC HAS THE CORPORATE POWER AND AUTHORITY TO
EXECUTE AND DELIVER THE DOCUMENTS, CERTIFICATES AND INSTRUMENTS IT CONTEMPLATES
ENTERING INTO IN CONNECTION WITH THE MERGER (THE "ORGANIC MERGER DOCUMENTS") AND
TO PERFORM ITS OBLIGATIONS THEREUNDER.
THE ORGANIC MERGER DOCUMENTS HAVE BEEN
OR WILL BE, ON OR BEFORE THE CLOSING OF THE MERGER, DULY AUTHORIZED, EXECUTED
AND DELIVERED BY THE ORGANIC AND ARE OR WILL BE, AT THE CLOSING OF THE MERGER,
VALID, BINDING AND ENFORCEABLE AGAINST THE ORGANIC IN ACCORDANCE WITH THEIR
RESPECTIVE TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY GENERAL
PRINCIPLES OF EQUITY OR TO APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM, LIQUIDATION AND OTHER SIMILAR LAWS RELATING TO, OR AFFECTING
GENERALLY, THE ENFORCEMENT OF APPLICABLE CREDITORS' RIGHTS AND REMEDIES. THE
EXECUTION AND DELIVERY BY ORGANIC