of the unaudited statements, all
footnotes required by GAAP may not be included and subject to normal year-end
audit adjustments).
3.5
ABSENCE OF CERTAIN EVENTS AND CHANGES. EXCEPT AS DISCLOSED IN THE
SEC FILINGS FILED PRIOR TO THE EFFECTIVE DATE, SINCE THE DATE OF FILING OF THE
COMPANY'S QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTERLY PERIOD ENDED JUNE 30,
2009 WITH THE SEC, (I) THE COMPANY HAS CONDUCTED ITS BUSINESSES IN THE ORDINARY
COURSE CONSISTENT WITH PAST PRACTICE, (II) THERE HAS NOT BEEN ANY EVENT, CHANGE
OR DEVELOPMENT WHICH, INDIVIDUALLY OR IN THE AGGREGATE, WOULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT OR (III) THERE HAS NOT BEEN ANY
ACQUISITION OR DISPOSITION OF ANY MATERIAL ASSETS (OR ANY CONTRACT OR
ARRANGEMENT THEREFORE) OR ANY OTHER MATERIAL TRANSACTION BY THE COMPANY.
3.6
COMPLIANCE WITH LAWS.
THE COMPANY HAS ALL MATERIAL PERMITS,
LICENSES, FRANCHISES, AUTHORIZATIONS, ORDERS AND APPROVALS OF, AND HAS MADE ALL
FILINGS, APPLICATIONS AND REGISTRATIONS WITH, GOVERNMENTAL ENTITIES THAT ARE
REQUIRED IN ORDER TO PERMIT IT TO CARRY ON ITS BUSINESS AS PRESENTLY CONDUCTED
AND THAT ARE MATERIAL TO THE BUSINESS OF THE COMPANY.
THE COMPANY HAS COMPLIED
IN ALL MATERIAL RESPECTS AND IS NOT IN DEFAULT OR VIOLATION OF, AND, TO THE
COMPANY'S KNOWLEDGE, IS NOT UNDER INVESTIGATION WITH RESPECT TO OR THREATENED TO
BE CHARGED WITH OR GIVEN NOTICE OF ANY MATERIAL VIOLATION OF, ANY APPLICABLE
DOMESTIC (FEDERAL, STATE OR LOCAL) OR FOREIGN LAW, STATUTE, ORDINANCE, LICENSE,
RULE, REGULATION, POLICY OR GUIDELINE, ORDER, DEMAND, WRIT, INJUNCTION, DECREE
OR JUDGMENT OF ANY GOVERNMENTAL ENTITY.
3
3.7
MATERIAL CONTRACTS.
AS OF THE EFFECTIVE DATE, THE COMPANY HAS
FILED AS EXHIBITS TO THE SEC FILINGS ALL MATERIAL AGREEMENTS REQUIRED TO BE
FILED UNDER THE RULES AND REGULATIONS OF THE SEC (THE "MATERIAL CONTRACTS"), AND
(I) TO THE COMPANY'S KNOWLEDGE, ALL MATERIAL CONTRACTS ARE VALID, BINDING AND IN
FULL FORCE AND EFFECT AND ENFORCEABLE AGAINST THE COMPANY AS OF THE EFFECTIVE
DATE, (II) THE COMPANY IS IN ALL MATERIAL RESPECTS IN COMPLIANCE WITH AND HAS IN
ALL MATERIAL RESPECTS PERFORMED ALL OBLIGATIONS REQUIRED TO BE PERFORMED BY IT
TO DATE UNDER EACH MATERIAL CONTRACT; AND (III) AS OF THE EFFECTIVE DATE, THE
COMPANY DOES NOT KNOW OF, AND HAS NOT RECEIVED WRITTEN NOTICE OF, ANY MATERIAL
VIOLATION OR DEFAULT (OR ANY CONDITION WHICH WITH THE PASSAGE OF TIME OR THE
GIVING OF NOTICE WOULD CAUSE SUCH A VIOLATION OF OR A DEFAULT) BY ANY OTHER
PARTY UNDER ANY MATERIAL CONTRACT.
3.8
PRIVATE PLACEMENT.
ASSUMING THE ACCURACY OF THE PURCHASER'S
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 4.2, NO REGISTRATION UNDER
THE SECURITIES ACT IS REQUIRED FOR THE OFFER AND SALE OF THE SHARES BY THE
COMPANY TO THE PURCHASER AS CONTEMPLATED HEREBY.
3.9
INVESTMENT COMPANY.
THE COMPANY IS NOT, AND IMMEDIATELY AFTER
RECEIPT OF PAYMENT FOR THE SHARES WILL NOT BE, AN "INVESTMENT COMPANY" WITHIN
THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
THE COMPANY IS
NOT AN "AFFILIATED PERSON" OF, OR "PROMOTER" OR "PRINCIPAL