INFORMATION AND OTHER
MATTERS ORDINARILY COVERED BY ACCOUNTANTS' "COMFORT LETTERS" TO UNDERWRITERS IN
CONNECTION WITH REGISTERED PUBLIC OFFERINGS (THE FIRST SUCH LETTER, THE "INITIAL
COMFORT LETTER") AND (III) UPDATING THE INITIAL COMFORT LETTER WITH ANY
INFORMATION THAT WOULD HAVE BEEN INCLUDED IN THE INITIAL COMFORT LETTER HAD IT
BEEN GIVEN ON SUCH DATE AND MODIFIED AS NECESSARY TO RELATE TO THE REGISTRATION
STATEMENT AND THE PROSPECTUS, AS AMENDED AND SUPPLEMENTED TO THE DATE OF SUCH
LETTER.
(P)
MARKET ACTIVITIES.
THE COMPANY WILL NOT, DIRECTLY OR INDIRECTLY,
(I) TAKE ANY ACTION DESIGNED TO CAUSE OR RESULT IN, OR THAT CONSTITUTES OR MIGHT
REASONABLY BE EXPECTED TO CONSTITUTE, THE STABILIZATION OR MANIPULATION OF THE
PRICE OF ANY SECURITY OF THE COMPANY TO FACILITATE THE SALE OR RESALE OF THE
SHARES OR (II) SELL, BID FOR, OR PURCHASE THE SHARES, OR PAY ANYONE ANY
COMPENSATION FOR SOLICITING PURCHASES OF THE SHARES OTHER THAN WM SMITH.
21
(Q)
INVESTMENT COMPANY ACT.
THE COMPANY WILL CONDUCT ITS AFFAIRS IN SUCH A
MANNER SO AS TO REASONABLY ENSURE THAT NEITHER IT NOR THE SUBSIDIARIES WILL BE
OR BECOME, AT ANY TIME PRIOR TO THE TERMINATION OF THIS AGREEMENT, AN
"INVESTMENT COMPANY," AS SUCH TERM IS DEFINED IN THE INVESTMENT COMPANY ACT,
ASSUMING NO CHANGE IN THE COMMISSION'S CURRENT INTERPRETATION AS TO ENTITIES
THAT ARE NOT CONSIDERED AN INVESTMENT COMPANY.
(R)
NO OFFER TO SELL.
OTHER THAN AN ISSUER FREE WRITING PROSPECTUS
APPROVED IN ADVANCE BY THE COMPANY AND WM SMITH IN ITS CAPACITY AS PRINCIPAL OR
AGENT HEREUNDER, NEITHER WM SMITH NOR THE COMPANY (INCLUDING ITS AGENTS AND
REPRESENTATIVES, OTHER THAN WM SMITH IN ITS CAPACITY AS SUCH) WILL MAKE, USE,
PREPARE, AUTHORIZE, APPROVE OR REFER TO ANY WRITTEN COMMUNICATION (AS DEFINED IN
RULE 405 UNDER THE ACT), REQUIRED TO BE FILED WITH THE COMMISSION, THAT
CONSTITUTES AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY SHARES
HEREUNDER.
(S)
SARBANES-OXLEY ACT.
THE COMPANY AND THE SUBSIDIARIES WILL MAINTAIN AND
KEEP ACCURATE BOOKS AND RECORDS REFLECTING THEIR ASSETS AND MAINTAIN INTERNAL
ACCOUNTING CONTROLS IN A MANNER DESIGNED TO PROVIDE REASONABLE ASSURANCE
REGARDING THE RELIABILITY OF FINANCIAL REPORTING AND THE PREPARATION OF
FINANCIAL STATEMENTS FOR EXTERNAL PURPOSES IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES AND INCLUDING THOSE POLICIES AND PROCEDURES THAT
(I) PERTAIN TO THE MAINTENANCE OF RECORDS THAT IN REASONABLE DETAIL ACCURATELY
AND FAIRLY REFLECT THE TRANSACTIONS AND DISPOSITIONS OF THE ASSETS OF THE
COMPANY, (II) PROVIDE REASONABLE ASSURANCE THAT TRANSACTIONS ARE RECORDED AS
NECESSARY TO PERMIT THE PREPARATION OF THE COMPANY'S CONSOLIDATED FINANCIAL
STATEMENTS IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPALS,
(III) THAT RECEIPTS AND EXPENDITURES OF THE COMPANY ARE BEING MADE ONLY IN
ACCORDANCE WITH MANAGEMENT'S AND THE COMPANY'S DIRECTORS' AUTHORIZATION, AND
(IV) PROVIDE REASONABLE ASSURANCE REGARDING PREVENTION OR TIMELY DETECTION OF
UNAUTHORIZED ACQUISITION, USE OR DISPOSITION OF THE COMPANY'S ASSETS THAT COULD
HAVE A MATERIAL EFFECT ON ITS FINANCIAL STATEMENTS.
THE COMPANY AND THE
SUBSIDIARIES WILL MAINTAIN SUCH CONTROLS AND OTHER PROCEDURES, INCLUDING,
WITHOUT LIMITATION, THOSE REQUIRED BY SECTIONS 302 AND