OF ITS ARTICLES OF INCORPORATION OR
ITS BYLAWS, (II) OF ANY INSTRUMENT, JUDGMENT, ORDER, WRIT OR DECREE, (III) UNDER
ANY NOTE, INDENTURE OR MORTGAGE, (IV) UNDER ANY LEASE, AGREEMENT, CONTRACT OR
PURCHASE ORDER TO WHICH IT IS A PARTY OR BY WHICH IT IS BOUND, OR (V) OF ANY
PROVISION OF FEDERAL OR STATE STATUTE, RULE OR REGULATION APPLICABLE TO THE
COMPANY, EXCEPT TO THE EXTENT THAT SUCH VIOLATION OR DEFAULT ENUMERATED ABOVE
WOULD NOT HAVE, AND WOULD NOT BE REASONABLY EXPECTED TO HAVE, A MATERIAL ADVERSE
EFFECT.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE
CONSUMMATION OF THE TRANSACTIONS
3
CONTEMPLATED BY THIS AGREEMENT WILL NOT (A) RESULT IN OR CONSTITUTE, WITH OR
WITHOUT THE PASSAGE OF TIME AND/OR THE GIVING OF NOTICE, ANY SUCH VIOLATION OR
DEFAULT, (B) BE IN CONFLICT WITH ANY SUCH PROVISION, INSTRUMENT, JUDGMENT,
ORDER, WRIT, DECREE, CONTRACT OR AGREEMENT, OR (C) CONSTITUTE, WITH OR WITHOUT
THE PASSAGE OF TIME AND/OR THE GIVING OF NOTICE, AN EVENT WHICH RESULTS IN THE
CREATION OF ANY LIEN, CHARGE OR ENCUMBRANCE UPON ANY ASSETS OF THE COMPANY OR
THE SUSPENSION, REVOCATION, FORFEITURE OR NON-RENEWAL OF ANY MATERIAL PERMIT OR
LICENSE APPLICABLE TO THE COMPANY.
2.4.
SEC FILINGS.
COMPANY HAS TIMELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION (THE "SEC") ALL REQUIRED REPORTS, SCHEDULES, FORMS,
STATEMENTS AND OTHER DOCUMENTS, INCLUDING EXHIBITS AND ALL OTHER INFORMATION
INCORPORATED THEREIN AND HAS FILED A SHELF REGISTRATION AND PROSPECTUS
SUPPLEMENT RELATED TO THE REGISTRATION OF THE SHARES (COLLECTIVELY, THE "SEC
FILINGS").
THE SEC FILINGS (I) AT THE TIME FILED, COMPLIED IN ALL MATERIAL
RESPECTS WITH THE APPLICABLE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED, AS THE CASE MAY BE, AND THE RULES AND REGULATIONS OF THE SEC
PROMULGATED THEREUNDER, AND (II) DID NOT AT THE TIME THEY WERE FILED (OR IF
AMENDED OR SUPERSEDED BY A FILING PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT,
THEN ON THE DATE OF SUCH FILING) CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT
OR OMIT 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.
THERE ARE NO WRITTEN COMMENTS OF THE
STAFF OF THE SEC RELATED TO THE SEC FILINGS THAT REMAIN UNRESOLVED THAT WOULD
HAVE, OR WOULD REASONABLY BE EXPECTED TO HAVE, A MATERIAL ADVERSE EFFECT.
2.4.1.
FINANCIAL STATEMENTS.
THE FINANCIAL STATEMENTS INCLUDED IN THE SEC
FILINGS (I) COMPLIED AS TO FORM IN ALL MATERIAL RESPECTS WITH APPLICABLE
ACCOUNTING REQUIREMENTS AND THE PUBLISHED RULES AND REGULATIONS OF THE SEC WITH
RESPECT THERETO, (II) WERE PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES APPLIED ON A CONSISTENT BASIS DURING THE PERIODS INVOLVED
(EXCEPT AS MAY BE INDICATED IN THE NOTES THERETO), AND (III) FAIRLY PRESENTED IN
ALL MATERIAL RESPECTS THE CONSOLIDATED FINANCIAL POSITION OF THE COMPANY AND ITS
SUBSIDIARIES AS OF THE DATES THEREOF, AND THE