SHARES OF CAPITAL STOCK OR VOTING
SECURITIES OF EXEGY, OR (Z) OPTIONS OR OTHER RIGHTS TO ACQUIRE FROM EXEGY, AND
NO OBLIGATION OF EXEGY TO ISSUE, ANY CAPITAL STOCK, VOTING SECURITIES OR
SECURITIES CONVERTIBLE INTO OR EXCHANGEABLE FOR CAPITAL STOCK OR VOTING
SECURITIES OF EXEGY (THE ITEMS IN CLAUSES (X), (Y) AND (Z) BEING REFERRED TO
COLLECTIVELY AS THE "EXEGY SECURITIES").
THERE ARE NO OUTSTANDING OBLIGATIONS
OF EXEGY OR ANY EXEGY SUBSIDIARY TO REPURCHASE, REDEEM OR OTHERWISE ACQUIRE ANY
EXEGY SECURITIES.
THERE ARE NO OUTSTANDING CONTRACTUAL OBLIGATIONS OF EXEGY TO
PROVIDE FUNDS TO, OR MAKE ANY INVESTMENT (IN THE FORM OF A LOAN, CAPITAL
CONTRIBUTION OR OTHERWISE) IN, ANY OTHER PERSON.
AS OF THE DATE HEREOF, OTHER
THAN AS SPECIFICALLY PROVIDED IN THE ARTICLES OF INCORPORATION OF EXEGY,
THERE
ARE NO STOCKHOLDER AGREEMENTS, VOTING TRUSTS OR OTHER AGREEMENTS OR
UNDERSTANDINGS TO WHICH EXEGY IS A PARTY, OR OF WHICH EXEGY IS AWARE, RELATING
TO VOTING, REGISTRATION OR DISPOSITION OF ANY SHARES OF CAPITAL STOCK OF EXEGY.
SECTION 6.8.
SUBSIDIARIES.
SECTION 6.8 OF THE EXEGY DISCLOSURE SCHEDULE SETS
FORTH A TRUE AND COMPLETE LIST OF ALL EXEGY SUBSIDIARIES.
SECTION 6.9.
FINANCIAL STATEMENTS; NO MATERIAL UNDISCLOSED LIABILITIES.
(A)
THE AUDITED CONSOLIDATED BALANCE SHEETS OF EXEGY AS OF DECEMBER
31, 2003, DECEMBER 31, 2004 AND DECEMBER 31, 2005, TOGETHER WITH THE RELATED
AUDITED CONSOLIDATED STATEMENTS OF OPERATIONS, STOCKHOLDERS' EQUITY AND CASH
FLOWS FOR THE FISCAL YEARS THEN ENDED AND THE NOTES THERETO (THE "EXEGY
FINANCIAL STATEMENTS"), FAIRLY PRESENT IN ALL MATERIAL RESPECTS, IN CONFORMITY
WITH GAAP CONSISTENTLY APPLIED (EXCEPT AS MAY BE INDICATED IN THE NOTES
THERETO), THE FINANCIAL POSITION OF EXEGY AS OF THE DATES THEREOF AND ITS
RESULTS OF OPERATIONS, STOCKHOLDERS' EQUITY AND CONSOLIDATED CASH FLOWS FOR THE
PERIODS THEN ENDED.
(B)
THERE ARE NO LIABILITIES OF EXEGY OF ANY KIND WHATSOEVER, WHETHER
ACCRUED, CONTINGENT, ABSOLUTE, DETERMINED, DETERMINABLE OR OTHERWISE, IN EACH
CASE, THAT ARE REQUIRED BY GAAP TO BE SET FORTH ON A BALANCE SHEET OF EXEGY,
OTHER THAN:
(I)
LIABILITIES OR OBLIGATIONS DISCLOSED OR PROVIDED FOR IN THE EXEGY
BALANCE SHEET OR DISCLOSED IN THE NOTES THERETO OR WHICH WERE FULLY INCURRED OR
PAID AFTER DECEMBER 31, 2005 IN THE ORDINARY COURSE OF BUSINESS;
(II)
LIABILITIES OR OBLIGATIONS UNDER THIS AGREEMENT OR INCURRED IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY; AND
(III)
OTHER LIABILITIES OR OBLIGATIONS THAT INDIVIDUALLY OR IN THE
AGGREGATE, WOULD NOT BE REASONABLY LIKELY TO HAVE AN EXEGY MATERIAL ADVERSE
EFFECT.
16
SECTION 6.10.
LITIGATION.
THERE ARE NO ACTIONS, SUITS, INVESTIGATIONS,
ARBITRATIONS OR OTHER PROCEEDINGS PENDING AGAINST, OR TO THE KNOWLEDGE OF EXEGY
THREATENED AGAINST, EXEGY OR ANY OF ITS ASSETS OR PROPERTIES BEFORE ANY
ARBITRATOR OR GOVERNMENTAL ENTITY THAT ARE, INDIVIDUALLY OR IN THE AGGREGATE,
REASONABLY LIKELY TO (A) HAVE AN EXEGY MATERIAL ADVERSE EFFECT, OR (B) ADVERSELY
EFFECT THE ABILITY OF EXEGY TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT OR
TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
SECTION 6.11.
TAXES.
(A)
ALL MATERIAL TAX RETURNS (INCLUDING INFORMATION RETURNS),
DECLARATIONS, STATEMENTS, REPORTS AND