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 THEY WERE MADE, NOT MISLEADING. AS OF
THEIR RESPECTIVE FILING 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 UNITED STATES GENERALLY ACCEPTED ACCOUNTING PRINCIPLES,
CONSISTENTLY APPLIED, DURING THE PERIODS INVOLVED ("GAAP") (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).
TO THE KNOWLEDGE OF THE COMPANY, NO OTHER INFORMATION PROVIDED BY
OR ON BEHALF OF THE COMPANY TO THE BUYER WHICH IS NOT INCLUDED IN THE SEC
DOCUMENTS, INCLUDING, WITHOUT LIMITATION, INFORMATION REFERRED TO IN SECTION
2(D) OR IN THE DISCLOSURE SCHEDULES TO THIS AGREEMENT, CONTAINS ANY UNTRUE
STATEMENT OF A MATERIAL FACT OR OMITS TO STATE ANY MATERIAL FACT NECESSARY IN
ORDER TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCE UNDER
WHICH THEY ARE OR WERE MADE, NOT MISLEADING.
(K)
ABSENCE OF CERTAIN CHANGES.
SINCE DECEMBER 31, 2015, EXCEPT
AS DISCLOSED IN THE SEC DOCUMENTS FILED SUBSEQUENT TO THE FORM 10-K FILED WITH
RESPECT TO SUCH
10
DATE AND PRIOR TO THE DATE HEREOF, THERE HAS BEEN NO MATERIAL ADVERSE EFFECT
WITH RESPECT TO
THE BUSINESS, ASSETS, PROPERTIES, OPERATIONS, FINANCIAL
CONDITION, RESULTS OF OPERATIONS OR PROSPECTS OF THE COMPANY AND ANY OF ITS
SUBSIDIARIES, TAKEN AS A WHOLE.
SINCE DECEMBER 31, 2015, NEITHER THE COMPANY
NOR ANY OF ITS SUBSIDIARIES HAS (I) DECLARED OR PAID ANY DIVIDENDS, (II) SOLD
ANY ASSETS OUTSIDE OF THE ORDINARY COURSE OF BUSINESS, INDIVIDUALLY OR IN THE
AGGREGATE, IN EXCESS OF $100,000 OR (III) HAD CAPITAL EXPENDITURES OUTSIDE OF
THE ORDINARY COURSE OF BUSINESS, INDIVIDUALLY OR IN THE AGGREGATE, IN EXCESS OF
$150,000. NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES HAS TAKEN ANY STEPS TO
SEEK PROTECTION PURSUANT TO ANY BANKRUPTCY LAW NOR DOES THE COMPANY HAVE ANY
KNOWLEDGE OR REASON TO BELIEVE THAT ITS CREDITORS INTEND TO INITIATE INVOLUNTARY
BANKRUPTCY PROCEEDINGS OR ANY ACTUAL KNOWLEDGE OF ANY FACT THAT WOULD REASONABLY
LEAD A CREDITOR TO DO SO. THE COMPANY AND ITS SUBSIDIARIES, ON A CONSOLIDATED
BASIS, ARE NOT AS OF THE DATE HEREOF, AND AFTER GIVING EFFECT TO THE
TRANSACTIONS CONTEMPLATED HEREBY TO OCCUR AT THE CLOSING, WILL NOT BE INSOLVENT
(AS DEFINED BELOW). FOR PURPOSES OF THIS AGREEMENT, "INSOLVENT" MEANS, WITH