MISLEADING.
(D)
EACH OF THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS AND
UNAUDITED CONSOLIDATED INTERIM FINANCIAL STATEMENTS OF THE COMPANY INCLUDED IN
THE PARENT SEC DOCUMENTS WERE PREPARED IN CONFORMITY WITH GAAP (EXCEPT AS MAY BE
INDICATED IN THE NOTES THERETO) THROUGHOUT THE PERIODS INVOLVED, AND EACH FAIRLY
PRESENTS, IN ALL MATERIAL RESPECTS, THE CONSOLIDATED FINANCIAL POSITION OF THE
COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS OF THE DATE THEREOF AND THEIR
CONSOLIDATED RESULTS OF OPERATIONS AND CHANGES IN FINANCIAL POSITION FOR THE
PERIODS THEN ENDED (SUBJECT TO NORMAL YEAR-END ADJUSTMENTS IN THE CASE OF ANY
UNAUDITED INTERIM FINANCIAL STATEMENTS).
5.10.
Litigation.
As of the date of this Agreement, there is no Claim
pending, or, to the knowledge of Parent or Acquiror, threatened, against or
affecting Parent or Acquiror ("Parent Litigation") or against any of their
respective assets, properties or employees before any arbitrator or Governmental
Entity that would reasonably be expected to materially adversely affect the
ability of Parent or Acquiror to consummate the Merger, and neither Parent nor
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Acquiror nor any of their respective properties or assets or, to the Knowledge
of Parent or Acquiror, employees is or are subject to any Order that would
reasonably be expected to materially adversely affect the ability of the Company
or Acquiror to consummate the Merger.
5.11.
No Business Conduct; Ownership.
Acquiror was incorporated on
October 25, 2006.
Since its inception, Acquiror has not engaged in any
activity, other than such actions in connection with (i) its organization and
(ii) the preparation, negotiation and execution of this Agreement and the
transactions contemplated hereby.
Acquiror has not had any operations, has not
generated any revenues and has no liabilities other than those incurred in
connection with the foregoing and in association with the Merger as provided in
this Agreement.
All of the Equity Interests of Acquiror are wholly-owned
(directly or indirectly) by Parent.
ARTICLE 6
COVENANTS OF THE COMPANY
The Company agrees as set forth below.
6.1.
COMPANY INTERIM OPERATIONS.
(A)
EXCEPT AS SET FORTH IN SECTION 6.1 OF THE COMPANY DISCLOSURE
SCHEDULE OR AS OTHERWISE EXPRESSLY CONTEMPLATED BY THIS AGREEMENT, WITHOUT THE
PRIOR WRITTEN CONSENT OF ACQUIROR (WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED FOLLOWING A WRITTEN REQUEST FOR SUCH CONSENT),
FROM THE DATE HEREOF UNTIL THE EFFECTIVE TIME, THE COMPANY SHALL, AND SHALL
CAUSE EACH COMPANY SUBSIDIARY (OTHER THAN ANY SPECIAL PURPOSE VEHICLE) TO,
CONDUCT ITS BUSINESS IN ALL MATERIAL RESPECTS IN THE ORDINARY COURSE OF
BUSINESS, AND, SUBJECT TO THE LIMITATIONS, RESTRICTIONS AND PROHIBITIONS
CONTAINED HEREIN, SHALL USE ALL REASONABLE EFFORTS TO (X) MAINTAIN IN EFFECT ALL
MATERIAL PERMITS THAT ARE REQUIRED FOR THE COMPANY OR SUCH COMPANY SUBSIDIARY
(OTHER THAN ANY SPECIAL PURPOSE VEHICLE) TO CARRY ON ITS BUSINESS AS CURRENTLY
CONDUCTED, (Y) KEEP AVAILABLE THE SERVICES OF THE KEY OFFICERS, EMPLOYEES AND
INDEPENDENT CONTRACTORS SET FORTH ON SECTION 6.1(A)(Y) OF PARENT DISCLOSURE
SCHEDULE, AND (Z) PRESERVE EXISTING RELATIONSHIPS WITH ITS MATERIAL CUSTOMERS,
LENDERS, SUPPLIERS AND OTHER PERSONS HAVING MATERIAL BUSINESS RELATIONSHIPS WITH
IT.
WITHOUT LIMITING