THE "INTERIM COMPANY FINANCIAL STATEMENTS").
THE INTERIM COMPANY
FINANCIAL STATEMENTS:
(I) WERE PREPARED FROM THE BOOKS AND RECORDS OF THE
COMPANY; (II) WERE PREPARED IN ACCORDANCE WITH GAAP (EXCEPT FOR THE ABSENCE OF
FOOTNOTES) CONSISTENTLY APPLIED THROUGHOUT THE PERIODS INVOLVED; AND
(III) FAIRLY PRESENT IN ALL MATERIAL RESPECTS THE ASSETS AND LIABILITIES OF THE
COMPANY AS OF THE DATE OF THE BALANCE SHEET AND THE FINANCIAL RESULTS OF THE
COMPANY FOR THE PERIOD PRESENTED.
THE HISTORICAL COMPANY FINANCIAL STATEMENTS
AND INTERIM COMPANY FINANCIAL STATEMENTS ARE COLLECTIVELY REFERRED TO IN THIS
AGREEMENT AS THE "COMPANY FINANCIAL STATEMENTS".
SECTION 2.8
ABSENCE OF CHANGES.
EXCEPT AS SET
FORTH ON SCHEDULE 2.8, SINCE THE DATE OF THE INTERIM COMPANY FINANCIAL
STATEMENTS, THE COMPANY HAS CONDUCTED BUSINESS ONLY IN THE ORDINARY COURSE OF
BUSINESS AND THERE HAS NOT BEEN:
(A)
ANY AMENDMENT TO ITS ARTICLES OF INCORPORATION
OR BYLAWS OR OTHER ORGANIZATIONAL DOCUMENTS, OR ANY CHANGE IN THE CHARACTER OR
CONDUCT OF ITS BUSINESS IN ANY MATERIAL RESPECT;
(B)
ANY DECLARATION, SETTING ASIDE OR PAYMENT OF ANY
DIVIDENDS OR DISTRIBUTIONS IN RESPECT OF THE SHARES OR ANY REDEMPTION, PURCHASE
OR OTHER ACQUISITION OF ANY OF THE SECURITIES OR OTHER EQUITY INTERESTS OF THE
COMPANY;
13
(C)
ANY MATERIAL INCREASE IN THE BENEFITS UNDER, OR
THE ESTABLISHMENT OR AMENDMENT OF, ANY BONUS, INSURANCE, SEVERANCE, DEFERRED
COMPENSATION, PENSION, RETIREMENT, PROFIT SHARING, PERFORMANCE AWARDS
(INCLUDING, WITHOUT LIMITATION, THE GRANTING OF STOCK
APPRECIATION RIGHTS OR
RESTRICTED STOCK AWARDS), STOCK PURCHASE OR OTHER EMPLOYEE BENEFIT PLAN, OR ANY
INCREASE IN THE COMPENSATION PAYABLE OR TO BECOME PAYABLE TO ANY OF THE
DIRECTORS OR OFFICERS OF THE COMPANY OR THE EMPLOYEES OF THE COMPANY AS A GROUP;
OR
(D)
ANY MATERIAL ADVERSE EFFECT ON THE COMPANY; OR
(E)
ANY MATERIAL AGREEMENT, COMMITMENT OR
TRANSACTION ENTERED INTO, EXCEPT IN THE ORDINARY COURSE OF BUSINESS, OR EXCEPT
FOR THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 2.9
LITIGATION.
EXCEPT AS SET FORTH
ON SCHEDULE 2.9, THERE ARE NO PROCEEDINGS PENDING OR, TO THE KNOWLEDGE OF SELLER
AND THE COMPANY, THREATENED IN WRITING AGAINST THE COMPANY OR INVOLVING ANY OF
THE MATERIAL PROPERTIES OR MATERIAL ASSETS OF THE COMPANY, AT LAW OR IN EQUITY
OR BEFORE OR BY ANY FOREIGN, FEDERAL, STATE, MUNICIPAL, OR OTHER GOVERNMENTAL
COURT, DEPARTMENT, COMMISSION, BOARD, BUREAU, AGENCY, OR OTHER INSTRUMENTALITY
OR PERSON OR ANY BOARD OF ARBITRATION OR SIMILAR ENTITY.
NEITHER THE COMPANY
NOR ANY OF ITS PROPERTIES OR ASSETS IS SUBJECT TO ANY EXECUTORY JUDGMENT, ORDER,
WRIT, INJUNCTION, DECREE OR AWARD OF ANY GOVERNMENTAL BODY, INCLUDING WITHOUT
LIMITATION, ANY CEASE AND DESIST ORDER AND ANY CONSENT DECREE, SETTLEMENT
AGREEMENT OR OTHER SIMILAR CONTRACT OR AGREEMENT WITH ANY GOVERNMENTAL BODY.
TO
THE KNOWLEDGE OF SELLER AND THE COMPANY, AS OF THE CLOSING DATE, THERE ARE NO
FACTS OR EVENTS THAT HAVE OCCURRED OR FAILED TO OCCUR THAT REASONABLY COULD BE
EXPECTED TO RESULT IN THE COMMENCEMENT OF ANY PROCEEDING INVOLVING THE COMPANY
OR ANY OF ITS MATERIAL PROPERTIES OR MATERIAL ASSETS WHICH IF DETERMINED
ADVERSELY TO THE COMPANY