AFTER REASONABLE INVESTIGATION, AS OF THE CLOSING DATE, THE REPRESENTATIONS AND
WARRANTIES OF THE COMPANY IN THIS AGREEMENT ARE TRUE AND CORRECT, AND THE
COMPANY HAS COMPLIED WITH ALL AGREEMENTS AND SATISFIED ALL CONDITIONS ON ITS
PART TO BE PERFORMED OR SATISFIED HEREUNDER AT OR PRIOR TO THE CLOSING DATE, AND
(IV) THERE HAS NOT BEEN, SUBSEQUENT TO THE DATE OF THE MOST RECENT AUDITED
FINANCIAL STATEMENTS INCLUDED IN THE DISCLOSURE PACKAGE, ANY MATERIAL ADVERSE
CHANGE IN THE FINANCIAL POSITION OR RESULTS OF OPERATIONS OF THE COMPANY, OR ANY
CHANGE OR DEVELOPMENT THAT, SINGULARLY OR IN THE AGGREGATE, WOULD INVOLVE A
MATERIAL ADVERSE CHANGE OR A PROSPECTIVE MATERIAL ADVERSE CHANGE, IN OR
AFFECTING THE CONDITION (FINANCIAL OR OTHERWISE), RESULTS OF OPERATIONS,
BUSINESS, ASSETS OR PROSPECTS OF THE COMPANY, EXCEPT AS SET FORTH IN THE
PROSPECTUS.
II.
SECRETARY'S CERTIFICATE. AS OF THE CLOSING DATE THE
PLACEMENT AGENT SHALL HAVE RECEIVED A CERTIFICATE OF THE COMPANY SIGNED BY THE
SECRETARY OF THE COMPANY, DATED THE CLOSING DATE, CERTIFYING: (I) THAT EACH OF
THE COMPANY'S CHARTER AND BYLAWS IS TRUE AND COMPLETE, HAS NOT BEEN MODIFIED AND
IS IN FULL FORCE AND EFFECT; (II) THAT THE RESOLUTIONS OF THE COMPANY'S BOARD OF
DIRECTORS RELATING TO THE OFFERING ARE IN FULL FORCE AND EFFECT AND HAVE NOT
BEEN MODIFIED; AND (III) THE GOOD STANDING OF THE COMPANY AND ITS SUBSIDIARIES.
THE DOCUMENTS REFERRED TO IN SUCH CERTIFICATE SHALL BE ATTACHED TO SUCH
CERTIFICATE.
16
D.
NO MATERIAL CHANGES. PRIOR TO AND ON THE CLOSING DATE: (I)
THERE SHALL HAVE BEEN NO MATERIAL ADVERSE CHANGE OR DEVELOPMENT INVOLVING A
PROSPECTIVE MATERIAL ADVERSE CHANGE IN THE CONDITION OR PROSPECTS OR THE
BUSINESS ACTIVITIES, FINANCIAL OR OTHERWISE, OF THE COMPANY FROM THE LATEST
DATES AS OF WHICH SUCH CONDITION IS SET FORTH IN THE REGISTRATION STATEMENT, THE
DISCLOSURE PACKAGE AND THE PROSPECTUS; (II) NO ACTION, SUIT OR PROCEEDING, AT
LAW OR IN EQUITY, SHALL HAVE BEEN PENDING OR THREATENED AGAINST THE COMPANY OR
ANY AFFILIATES OF THE COMPANY BEFORE OR BY ANY COURT OR FEDERAL OR STATE
COMMISSION, BOARD OR OTHER ADMINISTRATIVE AGENCY WHEREIN AN UNFAVORABLE
DECISION, RULING OR FINDING MAY MATERIALLY ADVERSELY AFFECT THE BUSINESS,
OPERATIONS, PROSPECTS OR FINANCIAL CONDITION OR INCOME OF THE COMPANY, EXCEPT AS
SET FORTH IN THE REGISTRATION STATEMENT, THE DISCLOSURE PACKAGE AND THE
PROSPECTUS; (III) NO STOP ORDER SHALL HAVE BEEN ISSUED UNDER THE SECURITIES ACT
AND NO PROCEEDINGS THEREFOR SHALL HAVE BEEN INITIATED OR THREATENED BY THE
COMMISSION; AND (IV) THE REGISTRATION STATEMENT, THE DISCLOSURE PACKAGE AND THE
PROSPECTUS AND ANY AMENDMENTS OR SUPPLEMENTS THERETO SHALL CONTAIN ALL MATERIAL
STATEMENTS WHICH ARE REQUIRED TO BE STATED THEREIN IN ACCORDANCE WITH THE
SECURITIES ACT AND THE SECURITIES ACT REGULATIONS AND SHALL CONFORM IN ALL
MATERIAL RESPECTS TO THE REQUIREMENTS OF THE SECURITIES ACT AND THE SECURITIES
ACT REGULATIONS, AND NEITHER THE REGISTRATION STATEMENT, THE DISCLOSURE PACKAGE
NOR THE PROSPECTUS NOR ANY AMENDMENT OR SUPPLEMENT THERETO SHALL CONTAIN ANY
UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY MATERIAL