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WITHDRAWN, COMPLETELY OR PARTIALLY, FROM ANY MULTI-EMPLOYER PENSION PLAN SO AS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 BUYER
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 BUYER 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 BUYER PROMPTLY AFTER SUCH FILING.
5.2
USE OF PROCEEDS.
THE COMPANY SHALL USE THE PROCEEDS FROM THE SALE
OF THE SHARES FOR GENERAL WORKING CAPITAL REQUIREMENTS, CAPITAL EXPANSION
PROJECTS AND TO FINANCE POTENTIAL ACQUISITIONS BY THE COMPANY.
5.3
EXPENSES.
THE COMPANY SHALL REIMBURSE THE BUYER FOR ALL
REASONABLE EXPENSES INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES
AND EXPENSES, AND OUT-OF-POCKET TRAVEL COSTS AND EXPENSES, INCURRED BY THEM IN
CONNECTION WITH (A) THEIR DUE DILIGENCE REVIEW OF THE COMPANY AND ANY TARGET OF
ANY ACQUISITION THAT THE COMPANY MAY MAKE, WHICH ACQUISITION IS AT LEAST
PARTIALLY FINANCED BY THE SALE OF THE SHARES, AND (B) THE NEGOTIATION,
PREPARATION, EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT