OF THE ORGANIC MERGER DOCUMENTS DOES NOT, AND
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBY WILL NOT, CONFLICT
WITH, OR RESULT IN ANY VIOLATION OF, OR DEFAULT UNDER (WITH OR WITHOUT NOTICE OR
LAPSE OF TIME, OR BOTH), OR GIVE RISE TO A RIGHT OF TERMINATION, CANCELLATION OR
ACCELERATION OF ANY OBLIGATION OR LOSS OF ANY BENEFIT UNDER (I) ANY PROVISION OF
ORGANIC'S CERTIFICATE OF INCORPORATION OR BYLAWS, OR (II) ANY MATERIAL MORTGAGE,
INDENTURE, LEASE, CONTRACT OR OTHER AGREEMENT OR INSTRUMENT, PERMIT, CONCESSION,
FRANCHISE, LICENSE, JUDGMENT, ORDER, DECREE, STATUTE, LAW, ORDINANCE, RULE OR
REGULATION APPLICABLE TO ORGANIC OR ANY OF ITS PROPERTIES OR ASSETS, EXCEPT
WHERE SUCH CONFLICT, VIOLATION, DEFAULT, TERMINATION, CANCELLATION OR
ACCELERATION WITH RESPECT TO THE FOREGOING PROVISIONS OF (II) COULD NOT HAVE HAD
AND COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON
ORGANIC.
FOR THE PURPOSES OF THIS SECTION 5, A "MATERIAL ADVERSE EFFECT" WITH
RESPECT TO ANY PERSON MEANS ANY EVENT, CHANGE OR EFFECT THAT IS MATERIALLY
ADVERSE TO THE CONDITION (FINANCIAL OR OTHERWISE),
15
PROPERTIES, ASSETS, LIABILITIES, BUSINESS, OPERATIONS OR RESULTS OF OPERATIONS
OF SUCH PERSON AND ITS SUBSIDIARIES, IF ANY, TAKEN AS A WHOLE.
(C)
NO CONSENT, APPROVAL, ORDER OR AUTHORIZATION OF, OR REGISTRATION,
DECLARATION OR FILING WITH, ANY COURT, ADMINISTRATIVE AGENCY OR COMMISSION OR
OTHER GOVERNMENTAL AUTHORITY OR INSTRUMENTALITY ("GOVERNMENTAL ENTITY") IS
REQUIRED BY OR WITH RESPECT TO ORGANIC IN CONNECTION WITH THE EXECUTION AND
DELIVERY OF THE ORGANIC MERGER DOCUMENTS, OR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED THEREBY, EXCEPT FOR (I) THE FILING OF A CERTIFICATE OF
MERGER AS PROVIDED IN SECTION 1.2 OF THE MERGER AGREEMENT; (II) SUCH CONSENTS,
APPROVALS, ORDERS, AUTHORIZATIONS, REGISTRATIONS, DECLARATIONS AND FILINGS AS
MAY BE REQUIRED UNDER APPLICABLE STATE SECURITIES LAWS AND THE SECURITIES LAWS
OF ANY FOREIGN COUNTRY; AND (III) SUCH OTHER CONSENTS, AUTHORIZATIONS, FILINGS,
APPROVALS AND REGISTRATIONS WHICH, IF NOT OBTAINED OR MADE, WOULD NOT HAVE A
MATERIAL ADVERSE EFFECT ON ORGANIC AND WOULD NOT PREVENT, OR MATERIALLY ALTER OR
DELAY ANY OF THE TRANSACTIONS CONTEMPLATED BY THE ORGANIC MERGER DOCUMENTS.
(D)
FINANCIAL STATEMENTS. ORGANIC HAS PROVIDED TO PUBCO A CORRECT AND
COMPLETE COPY OF THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS (INCLUDING ANY
RELATED NOTES THERETO) OF ORGANIC FOR THE FISCAL YEAR ENDED DECEMBER 31, 2005
(THE "AUDITED FINANCIAL STATEMENTS") AND A CORRECT AND COMPLETE COPY OF THE
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS OF ORGANIC FOR THE NINE MONTH PERIOD
ENDED SEPTEMBER 30, 2006 (THE "UNAUDITED FINANCIAL STATEMENTS" AND, WITH THE
AUDITED FINANCIAL STATEMENTS, THE "FINANCIAL STATEMENTS").
THE FINANCIAL
STATEMENTS WERE PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES OF THE UNITED STATES ("GAAP") APPLIED ON A CONSISTENT BASIS
THROUGHOUT THE PERIODS INVOLVED (EXCEPT AS MAY BE INDICATED IN THE NOTES
THERETO), AND EACH FAIRLY PRESENTS IN ALL MATERIAL RESPECTS THE FINANCIAL
POSITION OF ORGANIC AT THE RESPECTIVE DATES THEREOF AND THE RESULTS OF ITS
OPERATIONS AND CASH FLOWS FOR THE PERIODS INDICATED, EXCEPT THAT THE UNAUDITED
FINANCIAL STATEMENTS DO NOT CONTAIN NOTES AND ARE SUBJECT TO NORMAL ADJUSTMENTS
THAT ARE NOT