WITH, ANY LEGAL REQUIREMENT OR (B) THAT IS REASONABLY LIKELY TO GIVE RISE
TO ANY MATERIAL OBLIGATION ON THE PART OF BUYER WITH RESPECT TO THE ITS ASSETS,
OR TO BEAR ALL OR ANY PORTION OF THE COST OF, ANY REMEDIAL ACTION OF ANY NATURE;
AND
(C)
BUYER HAS NOT RECEIVED, AT ANY TIME SINCE JANUARY 1, 2006, ANY WRITTEN
NOTICE OR OTHER COMMUNICATION FROM ANY GOVERNMENTAL ENTITY OR ANY OTHER PERSON
REGARDING (A) ANY ACTUAL OR ALLEGED, VIOLATION OF, OR FAILURE TO COMPLY WITH,
ANY LEGAL REQUIREMENT OR (B) ANY ACTUAL OR ALLEGED OBLIGATION ON THE PART OF
BUYER TO UNDERTAKE, OR TO BEAR ALL OR ANY PORTION OF THE COST OF, ANY REMEDIAL
ACTION OF ANY NATURE, IN EACH CASE RELATED TO THE OWNERSHIP OF ITS ASSETS OR THE
OPERATION OF ITS BUSINESS.
4.10
INFORMATION IN PROXY STATEMENT.
THE PROXY STATEMENT AND ANY OTHER
DOCUMENT FILED WITH THE SEC BY BUYER IN CONNECTION WITH THE TRANSACTIONS (TAKING
INTO ACCOUNT ANY AMENDMENT THEREOF OR SUPPLEMENT THERETO), AT THE DATE FIRST
MAILED TO THE STOCKHOLDERS OF BUYER, AT THE TIME OF THE BUYER STOCKHOLDER'S
MEETING AND AT THE TIME FILED WITH THE SEC, AS THE CASE MAY BE, WILL NOT CONTAIN
ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT
REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS
THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY ARE MADE, NOT
MISLEADING, AND THE PROXY STATEMENT AND SUCH
33
OTHER DOCUMENTS FILED WITH THE SEC BY BUYER WILL COMPLY WITH THE PROVISIONS OF
THE EXCHANGE ACT; PROVIDED, HOWEVER, THAT NO REPRESENTATION IS MADE BY BUYER
WITH RESPECT TO STATEMENTS MADE THEREIN BASED ON INFORMATION SUPPLIED BY SELLER
FOR INCLUSION IN SUCH DOCUMENTS.
4.11
ABSENCE OF CERTAIN CHANGES OR EVENTS.
EXCEPT AS SET FORTH ON
SCHEDULE 4.11 OR IN THE BUYER SEC DOCUMENTS OR AS CONTEMPLATED BY THIS AGREEMENT
OR THE ANCILLARY AGREEMENTS, SINCE DECEMBER 31, 2006, BUYER HAS CONDUCTED ITS
BUSINESS IN THE ORDINARY COURSE OF BUSINESS.
WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING AND EXCEPT AS EXPRESSLY PROVIDED HEREIN OR AS SET FORTH ON
SCHEDULE 4.11 OR IN THE BUYER SEC DOCUMENTS, SINCE DECEMBER 31, 2006, THERE HAS
BEEN NO:
(A)
BUYER MATERIAL ADVERSE CHANGE;
(B)
CHANGE IN ACCOUNTING METHODS, PRINCIPLES OR PRACTICES BY BUYER IN
CONNECTION WITH ITS ASSETS, LIABILITIES OR BUSINESS, OTHER THAN AS REQUIRED BY
GAAP OR OTHER APPLICABLE LAW;
(C)
DECLARATION, SETTING ASIDE OR PAYMENT OF ANY DIVIDEND OR OTHER
DISTRIBUTION (WHETHER IN CASH, STOCK OR PROPERTY) WITH RESPECT TO THE BUYER
CAPITAL STOCK; OR
(D)
SPLIT, COMBINATION OR RECLASSIFICATION OF THE BUYER CAPITAL STOCK
OR ANY ISSUANCE OR THE AUTHORIZATION OF ANY ISSUANCE OF ANY OTHER SECURITIES IN
EXCHANGE OR IN SUBSTITUTION FOR SHARES OF THE BUYER COMMON STOCK.
4.12
TAXES.
(A)
BUYER HAS TIMELY FILED (OR HAS HAD TIMELY FILED ON ITS BEHALF) OR
WILL FILE OR CAUSE TO BE TIMELY FILED, ALL TAX RETURNS REQUIRED BY APPLICABLE
LAW TO BE FILED BY