Common use of SEC Filings; Financial Statements; Information Provided Clause in Contracts

SEC Filings; Financial Statements; Information Provided. (a) All forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, and the Exchange Act, as the case may be, applicable to such Company SEC Reports. None of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained any untrue statement of a material fact or omitted 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 were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term

SEC Filings; Financial Statements; Information Provided. (a) All forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, and the Exchange Act, as the case may be, applicable to such Company SEC Reports. None of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained any untrue statement of a material fact or omitted 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 were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termterm “Affiliate” shall have the same meaning as such term is defined in Rule 405 promulgated under the Securities Act. The Registration Statement shall comply in all material respects as to form and substance with the requirements of the Securities Act. The Proxy Statement shall comply in all material respects as to form and substance with the requirements of the Exchange Act. The Company makes no representation or warranty with respect to any information supplied by the Fund which is contained in the Registration Statement or Proxy Statement.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished (as applicable) all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January 1, 2001 2006. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.,” Except as set forth in Section 3.4 of and the Company Disclosure Schedule, has made available to the Parent copies of all Company SEC Reports to the extent not available on the SEC’s XXXXX system. The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleadingmisleading in any material respect. None No Subsidiary of the Company’s Subsidiaries has filedCompany is required to file any form, or is obligated to file, any forms, reports, schedules, statements report or other documents document with the SEC. As used in this Section 3.4(a), 3.5 of the term “filed” shall be broadly construed to include any manner in which a document Company Disclosure Schedule lists all effective registration statements filed by the Company on Form S-3 or information is furnished, supplied Form S-8 or otherwise made available to relying on Rule 415 under the SECSecurities Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed, and giving effect to any amendments or supplements thereto filed prior to the date of this Agreement, (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were or will not been and are not expected to be material to the Companyin amount or effect. The unaudited consolidated audited balance sheet of the Company as of June 30December 31, 2004 2008 set forth in the Company’s Annual Report on Form 10-K for the year ended December 31, 2008 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by or on behalf of the Company for inclusion in the registration statement Schedule TO or the Offer Documents on Form S-4 pursuant to which the Company Series A Preferred Stock issued in date the Merger Schedule TO is filed with the SEC and on the Company Common Stock issuable upon conversion of date the Company Series A Preferred Stock will be registered under the Securities Act (Offer Documents, including any amendments thereof and supplements thereto, are first published, sent or supplements, the “Registration Statement”)given to holders of shares of Company Common Stock, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. , in light of the circumstances in which they shall be made. (d) The information to be supplied by Company is in compliance in all material respects with the Company for inclusion in applicable provisions of the joint proxy statement/prospectus Xxxxxxxx-Xxxxx Act of 2002 (the “Proxy StatementXxxxxxxx-Xxxxx Act”). Each required form, report and document (including any amendment thereof and supplement thereto) containing financial statements that has been filed with or submitted or will be filed with or submitted to the SEC since January 1, 2006 was or will be accompanied by the certifications required to be sent filed or submitted by the Company’s principal executive officer and principal financial officer pursuant to the stockholders Xxxxxxxx-Xxxxx Act and Rule 13a-14 or 15d-14 promulgated under the Exchange Act and, at the time of filing or submission of each such certification, such certification complied or will comply in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and Rule 13a-14 or 15d-14 promulgated under the Exchange Act. (e) The Company maintains a system of internal accounting controls designed to provide reasonable assurance that (i) transactions are executed in connection accordance with management’s general or specific authorizations; (ii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iii) the recorded accountability for assets is compared with the meeting existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s stockholders filings with the SEC and other public disclosure documents. Between the date of the filing of the Company’s most recent quarterly report on Form 10-Q prior to consider the adoption date of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termCompany’s outside auditors and the audit committee of the Company Board have not been advised of (A) any significant deficiencies or material weaknesses in the design or operation of internal control over financial reporting which adversely affect the Company’s ability to record, process, summarize and report financial information, and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. Any material change in internal control over financial reporting and any significant deficiency or material weakness in the design or operation of internal control over financial reporting required to be disclosed in any Company SEC Report or in any form, report or document filed by the Company with the SEC has been so disclosed and each significant deficiency and material weakness previously so disclosed has been remediated. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The Nasdaq Stock Market. (f) The Company is not a party to, or does not have any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among the Company, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Exchange Act)), where the result, purpose or intended effect of such contract or arrangement is to avoid disclosure of any material transaction involving, or material liabilities of, the Company in the Company’s published financial statements or other Company SEC Reports.

SEC Filings; Financial Statements; Information Provided. (a) The Company has provided to the Buyer true and complete copies of all Company SEC Reports filed with the SEC prior to the date hereof. All registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) filed with the SEC are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 3.4(a) of the Company Disclosure Schedule, the Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the Exchange Act, as the case may be, and, if applicable, the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries Company is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. Since March 7, 2000, the Company has filedfiled with the SEC all registration statements, or is obligated to file, any forms, reports, schedules, statements or reports and other documents with required to be filed under the SEC. As used in this Section 3.4(a)Securities Act, the term “filed” shall Exchange Act, the Xxxxxxxx-Xxxxx Act and the rules and regulations of the SEC thereunder (including those that are required to be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to filed after the SECdate hereof until the Closing). (b) Each Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, including the Xxxxxxxx-Xxxxx Act, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The unaudited consolidated, audited balance sheet of the Company as of June 30December 31, 2004 2003 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by the Company for inclusion Included in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion Section 3.4(c) of the Company Series A Preferred Stock will be registered under Disclosure Schedule are the Securities Act (including any amendments or supplementsaudited consolidated balance sheet, the “Registration Statement”)statements of operations, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement stockholders’ equity and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders cash flows of the Company and its Subsidiaries as of December 31, 2003 and for the Partnersyear then ended (the “Audited Financial Statements”). The Audited Financial Statements (i) comply in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, at including the time Xxxxxxxx-Xxxxx Act, (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements) and (iii) fairly present the consolidated financial position of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light its Subsidiaries as of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make dates indicated and the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation consolidated results of proxies its operations and cash flows for the Company Meeting or the solicitation of consents in connection periods indicated, consistent with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) books and records of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termand its Subsidiaries.

SEC Filings; Financial Statements; Information Provided. (a) All SkillSoft has filed all registration statements, forms, reports and other documents required to be filed by the Company SkillSoft with the SEC since January 131, 2001 2000 and has made available to SmartForce copies of all registration statements, forms, reports and other documents filed by SkillSoft with the SEC since such date, all of which are available on the SEC's XXXXX system. All such required registration statements, forms, reports and other documents (including those that the Company SkillSoft may file after the date hereof until the Closing) are referred to herein as the “Company "SkillSoft SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company " The SkillSoft SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SkillSoft SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such SkillSoft SEC Reports or necessary in order to make the statements thereinin such SkillSoft SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of SkillSoft is subject to the reporting requirements of Sections 13(a) or 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SkillSoft SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company SkillSoft and its Subsidiaries as of the dates thereof indicated and the consolidated results of SkillSoft and its Subsidiaries' operations and cash flows for the periods indicated, consistent with the books and records of SkillSoft and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company SkillSoft as of June April 30, 2004 2002 is referred to herein as the “Company "SkillSoft Balance Sheet.”" (c) SkillSoft has previously furnished to SmartForce a complete and correct copy of any amendments or modifications, which have not yet been filed with the SEC but which are required to be filed, to agreements, documents or other instruments which previously had been filed by SkillSoft with the SEC pursuant to the Securities Act or the Exchange Act. (d) The information to be supplied by the Company or on behalf of SkillSoft for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by SmartForce pursuant to which SmartForce Ordinary Shares underlying the Company Series A Preferred Stock issued SmartForce ADSs issuable in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “"Registration Statement”"), or to be supplied by or on behalf of SkillSoft for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a "Regulation M-A Filing"), shall not at the time the Registration Statement or such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the Company or on behalf of SkillSoft for inclusion in the joint proxy statement/prospectus (the “"Joint Proxy Statement”/Prospectus") to be sent to the stockholders of the Company SkillSoft in connection with the meeting of SkillSoft Meeting, which shall be deemed to include all information about or relating to SkillSoft, the Company’s stockholders to consider SkillSoft Voting Proposal or the adoption of this Agreement and the Merger (the “Company SkillSoft Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) , shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and the PartnersSkillSoft, or at the time of the Company SkillSoft Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company SkillSoft Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, SkillSoft or any officers or directors of any of them, should be its Affiliates is discovered by the Company SkillSoft or occurs which should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus, the Company SkillSoft shall promptly inform the Fund. As used in this Agreement, the termSmartForce of such fact or event.

SEC Filings; Financial Statements; Information Provided. (a) All forms, The Company has filed or furnished all reports and other documents required to be filed or furnished by the Company it or any of its Subsidiaries with the SEC since January 1December 31, 2001 (collectively, including those that the Company may file after the date hereof until the Closing) are referred to herein as any amendments thereto, the “Company SEC Reports.” Except ”). As of their respective filing dates (or, if amended, as set forth in Section 3.4 of the Company Disclosure Scheduledate of such amendment), the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance complied in all material respects with the applicable requirements of the Securities Act, Exchange Act and the Exchange Securities Act, as the case may be, applicable to such Company and the rules and regulations of the SEC Reports. None promulgated thereunder and none of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except to the extent corrected by a Company SEC Report filed subsequently (but prior to the date hereof). None As of the Company’s Subsidiaries has fileddate hereof, or is obligated to file, any forms, reports, schedules, statements or other documents with there are no material unresolved comments issued by the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each staff of the consolidated SEC with respect to any of the Company SEC Reports. The financial statements (including, in each case, any including the related notes and schedules) contained of the Company included in, or to be contained in incorporated by reference into, the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) (except, in the case of unaudited financial statements, as permitted by applicable rules and regulations of the SEC) applied on a consistent basis throughout during the periods involved (except as may be indicated in the notes to such thereto) and fairly presented in all material respects the consolidated financial statements orposition of the Company and its consolidated subsidiaries as of the dates thereof and their consolidated results of operations for the periods then ended (subject, in the case of unaudited financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for to normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof audit adjustments and the results absence of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetfootnotes).” (cb) The Except with respect to information to be supplied by or on behalf of the Company Buyer or the Merger Sub for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders shareholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger Company Meeting (the “Proxy Statement”), the Proxy Statement and any other soliciting materials of the Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is or such materials are first mailed to stockholders the shareholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit omits to state any material fact required to be stated therein or necessary in order to make the statements made in the Proxy Statement therein not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment or supplement to the Registration Proxy Statement should be discovered by the Company or a should occur, the Company shall, promptly after becoming aware thereof, inform the Buyer of such fact or event and file the applicable amendment or supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in For purposes of this Agreement, the termterm “Affiliate” when used with respect to any person shall mean any person who is an “affiliate” of that person within the meaning of Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”). (c) The Company maintains disclosure controls and procedures as required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents, and such disclosure controls and procedures are, to the knowledge of the Company, effective to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC rules and forms. The Company has disclosed, based on its most recent evaluations, to the Company’s outside auditors and the audit committee of the Board of Directors of the Company (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) which are known to the Company and reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, known to the Company that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The principal executive officer and principal financial officer of the Company have made all certifications required by the Sxxxxxxx-Xxxxx Act of 2002 and any related rules and regulations promulgated by the SEC.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January 1, 2001 2010, and has made available to the Parent copies of all registration statements, forms, reports, certifications and other documents filed by the Company with the SEC since January 1, 2010, including all certifications and statements required by (i) Rule 13a-14 or 15d-14 of the Exchange Act or (ii) 18 U.S. C. §1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Sarbanes Act”)). All such registration statements, forms, reports, certifications and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC ReportsDocuments.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, SEC Documents are publicly available on the SEC’s XXXXX system. The Company has made available to the Parent copies of all comment letters received by the Company from the staff of the SEC Reports since January 1, 2010 and all responses to such comment letters by or on behalf of the Company. The Company SEC Documents (ix) were or will be filed on a timely basis basis, (y) at the time filed, or as of the date of such last amendment thereof, if any such Company SEC Document filed prior to the date hereof was amended after the filing and (ii) prior to the date of this Agreement, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None Documents, and (z) did not or will not at the time they were or are filed, or as of the date of such last amendment thereof, if any such Company SEC Reports when filed, after giving effect to any amendments and supplements thereto Document filed prior to the date hereofhereof was amended after the filing and prior to the date of this Agreement, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Documents or necessary in order to make the statements thereinin such Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, Company is subject to the reporting requirements of Section 13 or is obligated to file, any forms, reports, schedules, statements or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)3.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports Documents (i) at the time filed complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) at the time filed were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) at the time filed fairly presented or will fairly present the consolidated financial position of the Company Company, its Subsidiary and, if applicable, the CAD Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company, its Subsidiary and, if applicable, the CAD Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The consolidated, unaudited balance sheet of the Company as of June September 30, 2004 2013 is referred to herein as the “Company Balance Sheet.” (c) The information proxy statement to be supplied by sent to the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion shareholders of the Company Series A Preferred Stock will be registered under with respect to the Securities Act Company Meeting (including any amendments the information included in or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective incorporated by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus reference therein) (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders shareholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior Notwithstanding the foregoing, the Company makes no representation or warranty with respect to the Effective Time any event relating to the Company, any Affiliate (as defined below) information supplied by or on behalf of the Company, Parent or any officers Merger Sub for inclusion or directors of any of them, should be discovered incorporation by the Company which should be set forth reference in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all forms, reports and other documents required to be filed or furnished by the Company with the SEC and state securities regulators, including all prospectuses and other materials used by it or on its behalf in connection with the offer and sale of securities issued by the Company since January 1, 2001 2003. Such forms, reports and other documents (including those forms, reports and other documents that the Company may file with or furnish to the SEC after the date hereof until the Closing, including the Proxy Statement) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the ”. The Company SEC Reports (i) were or will be filed or furnished on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, and the Exchange ActAct and applicable state securities laws, as the case may be, and the rules and regulations promulgated thereunder applicable to such Company SEC Reports. None of the Company SEC Reports when filedfiled or furnished, after giving effect to any amendments and supplements thereto filed prior to or, if amended, as of the date hereofof such amendment, contained any untrue statement of a material fact or omitted 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 were made, not misleading. None No investigation by the SEC with respect to the Company or any its Subsidiaries is pending or, to the Knowledge of the Company’s Subsidiaries has filed, threatened. No Subsidiary of the Company is required, or is obligated has been required since January 1, 2003, to file, file or furnish any forms, reports, schedules, statements reports or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in or incorporated by reference into the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the consolidated financial position position, result of operations and cash flows of the Company as of the dates thereof and the results of its operations and cash flows of the Company and its consolidated Subsidiaries for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.” (c) The information Company has made available to be supplied Parent copies of all correspondence received by the Company for inclusion in the registration statement on Form S-4 pursuant to which from, or sent by the Company Series A Preferred Stock issued in to, the Merger and SEC since January 1, 2003. There are no outstanding or unresolved comments from the Company Common Stock issuable upon conversion SEC with respect to any of the Company Series A Preferred Stock will be registered SEC Reports. (d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a Exchange Act; such controls and procedures are designed to ensure that all material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by concerning the Company for inclusion in and the joint proxy statement/prospectus (the “Proxy Statement”) to be sent Subsidiaries is made known on a timely basis to the stockholders of individuals responsible for the Company in connection with the meeting preparation of the Company’s stockholders SEC filings and other public disclosure documents. (e) The Company and each of its Subsidiaries maintain accurate books and records reflecting its assets and liabilities and maintain a system of internal accounting controls that are designed to consider ensure that (i) transactions are executed in accordance with management’s authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s authorization, (iv) the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection recorded accountability for assets is compared with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement existing assets at regular intervals and appropriate action is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading taken with respect to any material factdifferences, and (v) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. The Company has previously made available to Parent complete and correct copies of all written descriptions of, and all policies, manuals and other documents promulgating, such internal accounting controls. (f) Neither the Company nor any of its Subsidiaries nor any of their respective trustees, directors, officers, employees, auditors or omit to state accountants has received or otherwise had or obtained knowledge of any material fact necessary in order to make complaint, allegation, assertion or claim, whether written or oral, regarding the statements made in accounting or auditing practices, procedures, methodologies or methods of the Proxy Statement not false Company or misleading; any of its Subsidiaries or omit to state their respective internal accounting controls, including any material fact necessary to correct complaint, allegation, assertion or claim that the Company or any statement of its Subsidiaries has engaged in questionable accounting or auditing practices. No attorney representing the Company or any earlier communication with respect of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, trustees, employees or agents to the solicitation of proxies for the Company Meeting Board or the solicitation of consents in connection with the Fund Consent Solicitation which has become false any committee thereof or misleading. If at to any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) trustee or officer of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term.

SEC Filings; Financial Statements; Information Provided. (a) All The Buyer has filed all registration statements, forms, reports and other documents required to be filed by the Company Buyer with the SEC since January 1, 2001 2010 and has made available to the Company copies of all registration statements, forms, reports and other documents filed by the Buyer with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company Buyer may file after the date hereof until the Closing) are referred to herein as the “Company Buyer SEC ReportsDocuments.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company The Buyer SEC Reports Documents (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Buyer SEC Reports. None of Documents, and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Documents or necessary in order to make the statements thereinin such Buyer SEC Documents, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Buyer SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Buyer and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company Buyer as of June 30April 1, 2004 2011 is referred to herein as the “Company Buyer Balance Sheet.” (c) The information in the Registration Statement or in any Regulation M-A Filing (except, in each case, for information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the Registration Statement or to be included or supplied by or on behalf of the Company for inclusion in the registration statement on Form S-4 pursuant any Regulation M-A Filing, as to which the Company Series A Preferred Stock issued in the Merger Buyer makes no representation and the Company Common Stock issuable upon conversion which shall not constitute part of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”Buyer SEC Documents for purpose of this Agreement), shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company Buyer for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and , which information shall be deemed to include all information about or relating to the Partners in connection with the Fund Consent Solicitation (as herein defined) Buyer, shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and the PartnersCompany, or at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Buyer or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement/Prospectus should be discovered by the Buyer or should occur, the Company Buyer shall promptly inform the Fund. As used in this Agreement, the termCompany of such fact or event.

SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Public Company with the SEC since January 1, 2001 2006. All such registration statements, forms, reports, certifications and other documents (including those that the Public Company may file after the date hereof until the Closing) are referred to herein as the “Public Company SEC ReportsDocuments.” All Public Company SEC Documents are publicly available on the SEC’s XXXXX system. Public Company has given to Merger Partner copies of all comment letters received by Public Company from the staff of the SEC and all responses to such comment letters by or on behalf of Public Company since January 1, 2006. Except as set forth disclosed in Section 3.4 4.5(a) of the Public Company Disclosure Schedule, the all Public Company SEC Reports Documents (iA) were or will be filed or deemed filed on a timely basis and basis, (iiB) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Public Company SEC Reports. None of Documents and (C) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted to state any material fact omission required to be stated therein in such Public Company SEC Documents or necessary in order to make the statements thereinin such Public Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of Public Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SECExchange Act. As used in this Section 3.4(a)4.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including, without limitation, Regulation S-X of the Exchange Act), (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsto the extent applicable) and (iii) fairly presented or will fairly present the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of Public Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The unaudited consolidated balance sheet of the Public Company as of June 30December 31, 2004 2008 contained in Public Company’s Annual Report on Form 10-K, as amended, for the period ended December 31, 2008 (the “Public Company Form 10-K”) filed with the SEC is referred to herein as the “Public Company Balance Sheet.” (c) The information Cherry, Bekaert & Holland, L.L.P., Public Company’s auditors since fiscal year 2008, is and has been at all times since its engagement by Public Company, and BDO Xxxxxxx, LLP, Public Company’s auditors during fiscal years 2006-2007, was at all times during its engagement by Public Company (i) “independent” with respect to be supplied by Public Company within the Company for inclusion meaning of Regulation S-X and (ii) in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion compliance with subsections (g) through (l) of Section 10A of the Company Series A Preferred Stock will be registered under the Securities Exchange Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”extent applicable) and the Partners in connection with related rules of the Fund Consent Solicitation SEC and the Public Company Accounting Oversight Board. (as herein definedd) The Proxy Statement shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersPublic Company, or at the time of the Public Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material factmisleading, or omit to state any material fact omission necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Public Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement should be discovered by Public Company or should occur, the Public Company shall promptly inform Merger Partner of such fact or event. (e) As of June 30, 2009, (i) the FundNet Assets of Public Company was not less than $8,500,000, (ii) Public Company’s Net Working Capital was not less than $7,400,000 and (iii) Public Company’s Cash and Cash Equivalents was not less than $7,300,000. As used in With respect to a party to this Agreement, the term(i) “

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1Securities and Exchange Commission ("SEC"). All such registration statements, 2001 forms, reports and other documents (including those that the Company may file after the date hereof until the Initial Offer Closing) are referred to herein as the “"Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the " The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements orstatements), in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.” (c) The information to be supplied Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Except as set forth in the Company for inclusion in the registration statement on Form S-4 pursuant SEC Reports, such disclosure controls and procedures are reasonably designed to which (i) ensure that all material information concerning the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of made known on a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent timely basis to the stockholders of individuals responsible for the Company in connection with the meeting preparation of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection 's filings with the Fund Consent Solicitation SEC and other public disclosure documents, (as herein definedii) shall not, on require the date maintenance of records that in reasonable detail accurately and fairly reflect the Proxy Statement is first mailed to stockholders material transactions and dispositions of the assets of the Company and its Subsidiaries, and (iii) provide reasonable assurance regarding presentation or timely direction of unauthorized acquisition, use or disposition of the Partners, at the time assets of the Company Meeting and at its Subsidiaries. To the Effective TimeCompany's Knowledge, contain except as set forth in the Company SEC Reports, neither the Company nor its independent auditors have identified (A) any statement whichsignificant deficiency or material weakness in the system of internal accounting controls utilized the Company and its Subsidiaries, at such time (B) any fraud, whether or not material, that involves the Company's management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company and in light its Subsidiaries or (C) any claim or allegations regarding any of the circumstances under which it shall be madeforegoing. (d) Neither the Company nor any of its Subsidiaries is a party to, is false or misleading with respect has any commitment to become a party to, any joint venture, partnership agreement or any similar Contract (including any Contract relating to any material facttransaction, arrangement or omit relationship between or among the Company or any of its Subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand (such as any arrangement described in Section 303(a)(4) of Regulation S-K of the SEC)) where the purpose or effect of such arrangement is to state avoid disclosure of any material fact necessary in order to make transaction involving the statements made Company or any of its Subsidiaries in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for Company's consolidated financial statements. (e) Neither the Company Meeting or the solicitation nor any of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating its Subsidiaries nor, to the Company's Knowledge, any Affiliate (as defined below) director, officer, auditor, accountant, consultant or representative of the Company or any of its Subsidiaries has received or otherwise had or obtained knowledge of any substantive complaint, allegation, assertion or claim, whether written or oral, that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices. No current or former attorney representing the Company or any of its Subsidiaries has reported evidence or a material violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the current Company Board or any committee thereof or to any current director or executive officer of the Company. (f) To the Company's Knowledge, no employee of the Company or any officers of its Subsidiaries has provided or directors is providing information to any law enforcement agency regarding the commission or possible commission of any crime or the violation or possible violation of them, should be discovered any applicable Law of the type described in Section 806 of the Xxxxxxxx-Xxxxx Act by the Company which should be or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Company's Knowledge, any director, officer, employee, contractor, subcontractor or agent of the Company or any such Subsidiary has discharged, demoted, suspended, threatened, harassed or in any other manner discriminated against an employee of the Company or any of its Subsidiaries in the terms and conditions of employment because of any lawful act of such employee described in Section 806 of the Xxxxxxxx-Xxxxx Act. (g) Except as set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementCompany SEC Reports, the Company shall promptly inform is in compliance in all material respects with all effective provisions of the Fund. As used in this Agreement, Xxxxxxxx-Xxxxx Act which are applicable to the termCompany.

SEC Filings; Financial Statements; Information Provided. (a) All SmartForce has filed all registration statements, forms, reports and other documents required to be filed by the Company SmartForce with the SEC since January 1, 2001 2000 and has made available to SkillSoft copies of all registration statements, forms, reports and other documents filed by SmartForce with the SEC since such date, all of which are available on the SEC's XXXXX system. All such required registration statements, forms, reports and other documents (including those that the Company SmartForce may file after the date hereof until the Closing) are referred to herein as the “Company "SmartForce SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company " The SmartForce SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SmartForce SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such SmartForce SEC Reports or necessary in order to make the statements thereinin such SmartForce SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of SmartForce is subject to the reporting requirements of Sections 13(a) or 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SmartForce SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company SmartForce and its Subsidiaries as of the dates thereof indicated and the consolidated results of SmartForce and its Subsidiaries' operations and cash flows for the periods indicated, consistent with the books and records of SmartForce and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company SmartForce as of June 30March 31, 2004 2002 is referred to herein as the “Company "SmartForce Balance Sheet.”" (c) SmartForce has previously furnished to SkillSoft a complete and correct copy of any amendments or modifications, which have not yet been filed with the SEC but which are required to be filed, to agreements, documents or other instruments which previously had been filed by SmartForce with the SEC pursuant to the Securities Act or the Exchange Act. (d) The information in the Registration Statement to be supplied by or on behalf of SmartForce for inclusion or incorporation by reference in the Company Registration Statement or to be supplied by or on behalf of SmartForce for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall therein not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC Securities and Exchange Commission (the “SEC”) since January 1, 2001 2002. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities ActAct of 1933, as amended, and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. There are no off-balance sheet structures or transactions with respect to the Company or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in or incorporated by reference in the Company SEC Reports at the time filed (or to be filed) (i) complied (or will comply comply) as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, thereto and (ii) were (or will be be) prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on with respect to Form 10-Q under the Exchange Act Act). Each of the consolidated balance sheets (including, in each case, any related notes and schedules) contained or for normal year-end adjustments) and (iii) to be contained or incorporated by reference in the Company SEC Reports at the time filed fairly presented (or will fairly present present) the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and each of the consolidated statements of income and of changes in financial position contained or to be contained or incorporated by reference in the Company SEC Reports (including, in each case, any related notes and schedules) fairly presented (or will fairly present) the consolidated results of operations, retained earnings and changes in financial position, as the case may be, of the Company and its operations and cash flows Subsidiaries for the periods indicatedset forth therein, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.” (c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, or at the time of the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundParent of such fact or event. As used in this AgreementAgreement with respect to any party, the termterm “Affiliate” means any Person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act of 1933, as amended.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January 1, 2001 2008, and has made available to the Parent copies of all registration statements, forms, reports, certifications and other documents filed by the Company with the SEC since January 1, 2008, including all certifications and statements required by (i) Rule 13a-14 or 15d-14 of the Exchange Act or (ii) 18 U.S. C. §1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Sarbanes Act”)). For purposes only of the first sentence of this Section 3.5(a), the phrase “made available to the Parent” shall be deemed to include Company filings and documents that are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports, certifications and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC ReportsDocuments.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, SEC Documents are publicly available on the SEC’s XXXXX system. The Company has made available to the Parent copies of all comment letters received by the Company from the staff of the SEC Reports since January 1, 2008 and all responses to such comment letters by or on behalf of the Company. The Company SEC Documents (ix) were or will be filed on a timely basis basis, (y) at the time filed, or as of the date of such last amendment thereof, if any such Company SEC Document filed prior to the date hereof was amended after the filing and (ii) prior to the date of this Agreement, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None Documents, and (z) did not or will not at the time they were or are filed, or as of the date of such last amendment thereof, if any such Company SEC Reports when filed, after giving effect to any amendments and supplements thereto Document filed prior to the date hereofhereof was amended after the filing and prior to the date of this Agreement, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Documents or necessary in order to make the statements thereinin such Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, Company is subject to the reporting requirements of Section 13 or is obligated to file, any forms, reports, schedules, statements or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)3.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The consolidated, unaudited balance sheet of the Company as of June 30, 2004 2011 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied To the knowledge of the Company, the Company’s current auditor is and has been at all times since its engagement by the Company for inclusion in the registration statement on Form S-4 pursuant (x) “independent” with respect to which the Company Series A Preferred Stock issued within the meaning of Regulation S-X and (y) in compliance with subsections (g) through (l) of Section 10A of the Merger Exchange Act (to the extent applicable) and the Company Common Stock issuable upon conversion related rules of the SEC and the Public Company Series A Preferred Stock will be registered under the Securities Act Accounting Oversight Board. (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue d) The proxy statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company with respect to the Company Meeting (including the information included in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger or incorporated by reference therein) (the “Company MeetingProxy Statement”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading, provided that the Company makes no representation with respect to any information supplied in writing by or on behalf of the Parent specifically for inclusion in the Proxy Statement. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the Fund. As used in this Agreement, the termParent of such fact or event.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC since January October 1, 2001 2005. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing, and in each case including all exhibits, schedules and amendments thereto and documents incorporated by reference therein) are referred to herein as the “Company SEC Reports.” Except as set forth As of their respective effective dates (in Section 3.4 the case of Company SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and as of their respective SEC filing dates (in the case of all other Company Disclosure ScheduleSEC Reports), the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance complied in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None , and none of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, as of such respective dates contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None No investigation by the SEC with respect to the Company or any of its Subsidiaries is pending or, to the Knowledge of the Company’s Subsidiaries , threatened. Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement (a “Filed Company SEC Report”) has filedbeen revised or superseded by a later Filed Company SEC Report, none of the Company SEC Reports contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. No Subsidiary of the Company is obligated subject to file, any forms, reports, schedules, statements the reporting requirements of Section 13(a) or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)Agreement, “Knowledge” of any Person that is not an individual shall mean, with respect to any matter in question, the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to actual knowledge after due inquiry of the SECindividuals listed on Section 3.5(b) of the Company Disclosure Letter. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that subject, in the case of unaudited interim financial statements were or are subject statements, to normal and recurring year-end adjustments that have not audit adjustments, none of which has been and are not expected to be or will be, individually or in the aggregate, material to the CompanyCompany and its Subsidiaries, taken as a whole). The unaudited consolidated, audited balance sheet of the Company as of June September 30, 2004 2007 included in the Company’s Annual Report on Form 10-K for the year ended as of such date (including the notes thereto) is referred to herein as the “Company Balance Sheet.”” Neither the Company nor any of its Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) whether or not required, if known, to be reflected or reserved against on a consolidated balance sheet of the Company prepared in accordance with GAAP or the notes thereto, except (i) liabilities as and to the extent set forth on the Company Balance Sheet or the notes thereto, (ii) liabilities incurred after the date of the Company Balance Sheet in the ordinary course of business consistent with past practice or in connection with the transactions contemplated by this Agreement, (iii) liabilities arising in the ordinary course of business pursuant to the terms of Company Contracts (other than relating to any breaches thereof by the Company or its Subsidiaries) disclosed in the Company Disclosure Letter or that are not required to be disclosed therein pursuant to the terms of this Agreement and (iv) liabilities that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. (c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which be sent to the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion shareholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments as amended or supplementssupplemented from time to time, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders shareholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any untrue statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any 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 were made, not misleading. (d) The Company has established and maintains disclosure controls and procedures and internal control over financial reporting required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information concerning the Company, including its consolidated Subsidiaries, is made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating known to the Company’s principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared; and such disclosure controls and procedures are designed to accumulate and communicate to the Company’s principal executive officer and its principal financial officer information required to be included in the Company’s periodic reports required under the Exchange Act as appropriate to allow timely decisions regarding required disclosure. The principal executive officer and the principal financial officer of the Company have timely made all certifications required by the Xxxxxxxx-Xxxxx Act of 2002 and any rules and regulations promulgated by the SEC thereunder (the “SOxA”). All of the statements contained in such certifications are complete and correct as of the dates thereof. The Company’s principal executive officer and its principal financial officer have disclosed, based on their most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Board of Directors of the Company (x) all significant deficiencies and material weaknesses (as such terms are defined in PCAOB Auditing Standard No. 2) in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data (each a “Financial Control Weakness”) and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The Nasdaq Stock Market. (e) The Company’s system of internal control over financial reporting is designed to provide reasonable assurance (i) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, (ii) that receipts and expenditures are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s assets that would materially affect the Company’s financial statements. No Financial Control Weakness was identified in management’s assessment of its internal control over financial reporting as of September 30, 2007 (nor has any such Financial Control Weakness since been identified). (f) The Company is in compliance in all material respects with the provisions of Section 13(b) of the Exchange Act. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any Affiliate director, officer, agent, employee or other Person acting on behalf of the Company or any of its Subsidiaries, has (i) used any corporate or other funds for unlawful contributions, payments, gifts or entertainment, or made any unlawful expenditures relating to political activity to government officials or others or established or maintained any unlawful or unrecorded funds or otherwise taken or permitted to be taken any action in violation of Section 30A of the Exchange Act or (ii) accepted or received any unlawful contributions, payments, gifts or expenditures. Except as set forth in Filed Company SEC Reports, since December 31, 2007, no event has occurred that would be required to be reported as a “Certain Relationship or Related Transaction” pursuant to Item 404(a) of Regulation S-K promulgated by the SEC. (g) Since October 1, 2005, the Company has not obtained Knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices. Since October 1, 2005, no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Board of Directors of the Company or any committee thereof or to any director or officer of the Company. (h) The Company has adopted a code of ethics, as defined belowby Item 406(b) of Regulation S-K, for senior financial officers, applicable to its principal financial officer, comptroller or principal accounting officer, or Persons performing similar functions. Prior to the date hereof, the Company has promptly disclosed, by filing a Form 8-K, any change in or waiver of the Company’s code of ethics, as required by Section 406(b) of SOxA. To the Knowledge of the Company, or any officers or directors as of any the date hereof, there have been no violations of them, should be discovered provisions of the Company’s code of ethics other than immaterial violations by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termemployees who are not responsible for managing others.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2015. All such registration statements, forms, reports and other documents (including exhibits, all other information incorporated therein and any supplements or amendments thereto and those registration statements, forms, reports and other documents that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (iii) except to the extent that information contained in a Company SEC Reports when filedReport has been revised, after giving effect to any amendments and supplements thereto amended, modified or superseded by a later filed Company SEC Report prior to the date hereof, contained did not or will not at the time they were or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None The Company has not as of the Company’s Subsidiaries has filed, or is obligated date hereof received any written comments from the SEC with respect to file, any forms, reports, schedules, statements or other documents with of the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in Company SEC Reports which a document or information is furnished, supplied or otherwise made available to the SECremain unresolved. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetaudit adjustments.” (c) The information to be supplied by or on behalf of the Company for inclusion in the registration statement Schedule TO or the Offer Documents, on Form S-4 pursuant the date the Schedule TO is filed with the SEC, on the date of any amendment or supplement thereto and on the date the Offer Documents are first published, sent or given to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Stock, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall nottherein, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under in which it they shall be made, not misleading. On the date the Schedule 14D-9 is false filed with the SEC, on the date of any amendment or misleading supplement thereto and on the date the Schedule 14D-9 is first published, sent or given to holders of shares of Company Common Stock, the Schedule 14D-9 (a) will comply as to form in all material respects with respect to the requirements of the Exchange Act and (b) will not contain any untrue statement of a material fact, fact or omit to state any material fact necessary in order to make the statements made therein, in the Proxy Statement light of the circumstances under which they are made, not false misleading. Notwithstanding the foregoing provisions of this Section 3.5(c), no representation or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication warranty is made by the Company with respect to information or statements made or incorporated by reference in the solicitation Schedule 14D-9 based upon information supplied by the Parent, the Purchaser or any of proxies their respective Representatives expressly for use or incorporation by reference therein. (d) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be filed or submitted by the Company’s principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. (e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to provide reasonable assurance that all information concerning the Company that could have a material effect on the financial statements is made known on a timely basis to the individuals responsible for the Company Meeting or preparation of the solicitation of consents in connection Company’s filings with the Fund Consent Solicitation which SEC and other public disclosure documents. The Company has become false or misleadingestablished and maintained a system of internal control over financial reporting (as defined in Rule 13a-15 under the Exchange Act). If at any time Such internal controls are designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of Company financial statements for external purposes in accordance with GAAP. The Company’s principal executive officer and its principal financial officer have disclosed, based on the most recent evaluation of internal control over financial reporting prior to the Effective Time any event relating date of this Agreement, to the Company’s auditors and the audit committee of the Company Board (and made available to Parent a summary of the significant aspects of such disclosure, if any) (i) all known significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any Affiliate material respect the Company’s ability to record, process, summarize and report financial information, and (ii) any known fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of the Nasdaq Stock Market. (f) The Company is not subject to any “Off-Balance Sheet Arrangement” (as defined belowin Item 303(a) of Regulation S-K under the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termSecurities Act).

SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed or furnished all registration statements, forms, reports reports, certifications and other documents required to be filed or furnished by the Public Company with the SEC since January 1for a period of at least twelve calendar months immediately preceding the execution of this Agreement. All such registration statements, 2001 (including forms, reports, certifications, and other documents, as amended prior to the date hereof, and those that the Public Company may file or furnish after the date hereof until the Closing) , are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Public Company SEC Reports (iA) were or will be filed or furnished, as applicable on a timely basis and basis, (iiB) were at the time filed or furnished (or if amended prior to the date hereof, when so amended), complied, or will be prepared in compliance comply when filed or furnished, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were filed or furnished (or if amended prior to the date hereof, contained when so amended) or are filed or furnished contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (or if amended prior to the date hereof, when so amended) (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsSEC) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyin amount. The unaudited consolidated balance sheet of the Public Company as of June 30March 31, 2004 2024 is referred to herein as the “Public Company Balance Sheet.” (c) Since January 1, 2024 and prior to the date of this Agreement, Public Company has not received any correspondence from Nasdaq or the staff thereof relating to the delisting or maintenance of listing of the Public Company Common Stock on Nasdaq. As of the date hereof, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Public Company SEC Reports. (d) Public Company’s auditor has at all times since its engagement by Public Company been “independent” with respect to Public Company within the meaning of Regulation S-X under the Exchange Act and, to the knowledge of Public Company, in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules and regulations promulgated by the SEC and the Public Company Accounting Oversight Board thereunder. (e) The information in the Registration Statement to be supplied by or on behalf of Public Company for inclusion or incorporation by reference in the Registration Statement or supplied by or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or any such Regulation M-A filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein in light of the Registration Statement circumstances under which they are made, not false or misleading. The information to be supplied by the or on behalf of Public Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to the stockholders of the Public Company and Merger Partner in connection with the meeting of Public Company Meeting, to solicit the approval by the Public Company’s stockholders of the Public Company Stockholder Approvals, which information shall be deemed to consider include all material information about or relating to Public Company, the adoption of this Agreement and Public Company Stockholder Approvals or the Merger (the “Public Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) , shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Public Company and the Partnersor Merger Partner, or at the time of the Public Company Meeting and at the Effective TimeMeeting, contain any untrue statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any a material fact, fact or omit to state any a material fact necessary in order to make the statements made therein, in the Proxy Statement light of the circumstances under which they were made, not false or misleading; provided, however, Public Company makes no representations or omit to state any material fact necessary to correct any statement in any earlier communication with respect warranties as to the solicitation of proxies for the Company Meeting information contained in or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to omitted from the Registration Statement or a supplement to the Proxy Statement, /Prospectus in reliance upon and in conformity with information furnished in writing to Public Company by or on behalf of Merger Partner specifically for inclusion in the Company shall promptly inform Registration Statement or the Fund. As used in this Agreement, the termProxy Statement/Prospectus which is misleading by virtue of such reliance or conformity.

SEC Filings; Financial Statements; Information Provided. (a) All The Buyer has filed all registration statements, forms, reports and other documents required to be filed by the Company Buyer with the SEC since January 1, 2001 2002. All such registration statements, forms, reports and other documents (including those that the Company Buyer may file after the date hereof until the Closing) are referred to herein as the “Company Buyer SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company The Buyer SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Buyer SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Reports or necessary in order to make the statements thereinin such Buyer SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Buyer is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or incorporated by reference or to be contained or incorporated by reference in the Company Buyer SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated, unaudited balance sheet of the Company Buyer as of June 30March 4, 2004 2005 is referred to herein as the “Company Buyer Balance Sheet.” (c) The information to be supplied by or on behalf of the Company Buyer for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Proxy Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Buyer or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement should be discovered by the Buyer or should occur, the Company shall Buyer shall, promptly after becoming aware thereof, inform the Fund. As used Company of such fact or event. (d) The certificates of the Chief Executive Officer and Chief Financial Officer of the Buyer required by Rules 13a-14 and 15d-14 of the Exchange Act or 18 U.S.C. §1350 (Section 906 of SOX) with respect to the Buyer SEC Reports, as applicable, were true and correct in this Agreement, the termall material respects as of their respective dates.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) ), together with all certifications required pursuant to the Sxxxxxxx-Xxxxx Act of 2002 and the related rules and regulations promulgated under or pursuant to such act (the “Sxxxxxxx-Xxxxx Act”), are referred to herein as the “Company SEC Reports.” Except as set forth to the extent that information contained in Section 3.4 any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or superseded by a later filed Company SEC Report filed prior to the Company Disclosure Scheduledate of this Agreement, the Company SEC Reports (i) other than the Company’s Annual Report on Form 10-K for the fiscal year ending December 31, 2002 and the Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ending March 31, June 30 and September 30, 2003, were or will be filed on a timely basis and basis, (ii) were or will be prepared in compliance at the time filed, complied as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, the Sxxxxxxx-Xxxxx Act and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. The Company has made available to Parent true, correct and complete copies of all correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other, since January 1, 2003, including all SEC comment letters on the Company SEC Reports and responses to such comment letters by or on behalf of the Company’s Subsidiaries has filed. To the knowledge of the Company, as of the date hereof, none of the Company SEC Reports is the subject of ongoing SEC review or is obligated to file, any forms, reports, schedules, statements outstanding SEC comment. There are no off-balance sheet structures or other documents transactions with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available respect to the SECCompany or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports. (b) Each Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or superseded by a later filed Company SEC Report filed prior to the date of this Agreement, each of the consolidated financial statements (including, in each case, any related notes and schedules) contained in or to be contained incorporated by reference in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, thereto and (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on with respect to Form 10-Q under the Exchange Act Act). Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or for normal year-end adjustmentssuperseded by a later filed Company SEC Report filed prior to the date of this Agreement, each of the consolidated balance sheets (including, in each case, any related notes and schedules) and (iii) contained or incorporated by reference in the Company SEC Reports at the time filed fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and each of the consolidated statements of income and of changes in financial position contained or incorporated by reference in the Company SEC Reports (including, in each case, any related notes and schedules) fairly presented in all material respects the consolidated results of operations, retained earnings and changes in financial position, as the case may be, of the Company and its operations and cash flows Subsidiaries for the periods indicatedset forth therein, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been adjustments. (c) Except as and are not expected to be material to the Company. The unaudited extent set forth on the consolidated balance sheet of the Company and the consolidated Subsidiaries as at December 31, 2005 (including the notes thereto and related management discussion and analysis) included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2005, neither the Company nor any Subsidiary has any liability or obligation of June 30any nature (whether accrued, 2004 absolute, contingent or otherwise and whether or not required to be disclosed), including those relating to matters involving any Environmental Law, except for liabilities and obligations (i) incurred in connection with the transactions contemplated hereby, (ii) incurred in the ordinary course of business and in a manner consistent with past practice since December 31, 2005, or (iii) that have not had, and is referred not reasonably expected to herein as the “have, a Company Balance SheetMaterial Adverse Effect.” (cd) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which be sent to the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion stockholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Proxy Statement”)) in connection with the Company Meeting will not, shall not on the date it is first mailed to the stockholders of the Company or at the time of the Registration Statement is declared effective by the SEC Company Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall nottherein, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be they are made, is false not misleading. The Proxy Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations promulgated by the SEC thereunder. The representations and warranties contained in this Section 5.6(d) will not apply to statements or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made omissions included in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement other filings made with the SEC based upon information furnished in any earlier communication with respect writing to the solicitation Company by Parent or Merger Sub specifically for use therein. (e) The Company maintains disclosure controls and procedures in accordance with Rules 13a-15 or 15d-15 promulgated under the Exchange Act. Such disclosure controls and procedures were effective as of proxies December 31, 2005, and are otherwise reasonably designed, to ensure that all material information concerning the Company and its Subsidiaries which is required to be disclosed by the Company in the Company SEC Reports is made known on a timely basis to the individuals responsible for the Company Meeting or preparation of the solicitation of consents in connection Company’s filings with the Fund Consent Solicitation which SEC and other public disclosure documents. The Company has become false or misleading. If at any time disclosed, based on its most recent evaluation prior to the Effective Time any event relating date hereof, to the Company’s auditors and the audit committee of the Company Board (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (B) any Affiliate fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. The Company has made available to Parent a summary of any such disclosure made by management to the Company’s auditors and audit committee since January 1, 2003, and Section 5.6(e) of the Company Disclosure Schedule sets forth a summary of all current significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting. Since January 1, 2003, no current or former employee of the Company or any of its Subsidiaries has alleged to any of the senior officers of the Company or such Subsidiaries that the Company or any such Subsidiaries has engaged in questionable or fraudulent accounting or auditing practices. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company Board or any committee thereof or to any director, in his or her capacity as a director, or officer, in his or her capacity as an officer, of the Company or any of its Subsidiaries. (as defined belowf) The Company and, to the knowledge of the Company, or each of its officers and directors are in compliance with, and have complied, in each case in all material respects with (i) the applicable listing and other rules and regulations of the NYSE (and, except as set forth in Section 5.6(f) of the Company Disclosure Schedule, has not since January 1, 2003 received any officers or directors notice from the NYSE asserting any non-compliance with such rules and regulations), and (ii) the applicable provisions of any of them, should be discovered the Sxxxxxxx-Xxxxx Act. There are no outstanding loans made by the Company which should be set forth or any of its Affiliates to any executive officer (as defined in an amendment to Rule 3b-7 under the Registration Statement Exchange Act) or a supplement to the Proxy Statement, director of the Company shall promptly inform or any Subsidiary of the FundCompany. As used Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3), since the enactment of the Sxxxxxxx-Xxxxx Act, neither the Company nor any of its Affiliates has made, arranged or modified (in this Agreement, any material way) personal loans or “extension of credit” to any executive officer (as defined in Rule 3b-7 under the termExchange Act) or director of the Company or any Subsidiary of the Company.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC since January 1, 2001 2002. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing, and in each case including all exhibits, schedules and amendments thereto and documents incorporated by reference therein) are referred to herein as the “Company SEC Reports.” Except as set forth As of their respective effective dates (in Section 3.4 the case of Company SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and as of their respective SEC filing dates (in the case of all other Company Disclosure ScheduleSEC Reports), the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance complied in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None , and none of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, as of such respective dates contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None No investigation by the SEC with respect to the Company or any of its Subsidiaries is pending or, to the Knowledge of the Company’s Subsidiaries , threatened. Except to the extent that information contained in any Company SEC Report on (i) Form 10-K filed and publicly available after January 1, 2003 or (ii) Form 10-Q filed after January 1, 2005, in each case prior to the date of this Agreement (a “Specified Company SEC Report”) has filedbeen revised or superseded by a later filed Company SEC Report filed and publicly available prior to the date of this Agreement (each a “Filed Company SEC Report”), none of the Specified Company SEC Reports contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. No Subsidiary of the Company is obligated subject to file, any forms, reports, schedules, statements the reporting requirements of Section 13(a) or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)Agreement, “Knowledge” of any Person that is not an individual shall mean, with respect to any matter in question, the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to knowledge after due inquiry of those persons set forth on Section 3.5(a) of the SECCompany Disclosure Letter. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that subject, in the case of unaudited interim financial statements were or are subject statements, to normal and recurring year-end adjustments that have not audit adjustments, none of which has been and are not expected to be or will be, individually or in the aggregate, material to the CompanyCompany and its Subsidiaries, taken as a whole). The unaudited consolidated, audited balance sheet of the Company as of June 30December 31, 2004 (the “Balance Sheet Date”) included in the Company’s Annual Report on Form 10-K for the year ended as of such date (including the notes thereto) is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which be sent to the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion shareholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments as amended or supplementssupplemented from time to time, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders shareholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any untrue statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any a material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the Proxy Statement circumstances under which they were made, not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication provided, however, that no representation is made by the Company with respect to the solicitation of proxies information supplied by Buyer specifically for the Company Meeting or the solicitation of consents inclusion in connection with the Fund Consent Solicitation which has become false or misleadingsuch documents. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates that should be set forth in a supplement to the Proxy Statement should be discovered by the Company or should occur, the Company shall, promptly after becoming aware thereof, inform the Buyer of such fact or event. (d) The Company has established and maintains disclosure controls and procedures and internal control over financial reporting required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company, including its consolidated Subsidiaries, is made known to the Company’s principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which should the periodic reports required under the Exchange Act are being prepared; and such disclosure controls and procedures are effective in accumulating and communicating to the Company’s principal executive officer and its principal financial officer information required to be included in the Company’s periodic reports required under the Exchange Act as appropriate to allow timely decisions regarding required disclosure. The principal executive officer and the principal financial officer of the Company have timely made all certifications required by the Xxxxxxxx-Xxxxx Act of 2002 and any rules and regulations promulgated by the SEC thereunder (the “SOxA”). All of the statements contained in such certifications are complete and correct as of the dates thereof. The Company’s principal executive officer and its principal financial officer have disclosed, based on their most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Board of Directors of the Company (x) all significant deficiencies and material weaknesses (as such terms are defined in PCAOB Auditing Standard No. 2) in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data (each a “Financial Control Weakness”) and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company is in compliance with the applicable listing and other rules and regulations of The NASDAQ National Market. (e) The Company’s system of internal control over financial reporting is effective in providing reasonable assurance (i) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, (ii) that receipts and expenditures are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s assets that would materially affect the Company’s financial statements. No Financial Control Weakness was identified in management’s assessment of its internal control over financial reporting as of December 31, 2004 (nor has any such Financial Control Weakness since been identified). (f) The Company is in compliance in all material respects with the provisions of Section 13(b) of the Exchange Act. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any director, officer, agent, employee or other Person acting on behalf of the Company or any of its Subsidiaries, has (i) used any corporate or other funds for unlawful contributions, payments, gifts or entertainment, or made any unlawful expenditures relating to political activity to government officials or others or established or maintained any unlawful or unrecorded funds or otherwise taken or permitted to be taken any action in violation of Section 30A of the Exchange Act (the “FCPA”) or (ii) accepted or received any unlawful contributions, payments, gifts or expenditures. Except as set forth in an amendment Filed Company SEC Reports, since December 31, 2004, no event has occurred that would be required to be reported as a “Certain Relationship or Related Transaction” pursuant to Item 404 of Regulation S-K promulgated by the SEC. (g) Since January 1, 2003, neither the Company nor any of its Subsidiaries nor any of their respective directors, officers, employees, auditors or accountants, has received or otherwise had or obtained Knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices. Since January 1, 2003, no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Registration Statement or a supplement to the Proxy Statement, Board of Directors of the Company shall or any committee thereof or to any director or officer of the Company. (h) The Company has adopted a code of ethics, as defined by Item 406(b) of Regulation S-K, for senior financial officers, applicable to its principal financial officer, comptroller or principal accounting officer, or Persons performing similar functions. The Company has promptly inform disclosed, by filing a Form 8-K, any change in or waiver of the Fund. As used in this AgreementCompany’s code of ethics, as required by Section 406(b) of SOxA. To the termKnowledge of the Company, there have been no violations of provisions of the Company’s code of ethics.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC Securities and Exchange Commission (the “SEC”) since January 1November 30, 2001 2010. All such registration statements, forms, reports and other documents filed after such date (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of Reports and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None As of the Company’s Subsidiaries date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC or its staff. There has filedbeen no material correspondence between the SEC and the Company since November 30, or 2010 that is obligated to file, any forms, reports, schedules, statements or other documents with not available on the SEC’s Electronic Data Gathering and Retrieval database. As used in this Section 3.4(a), No Subsidiary of the term “filed” shall be broadly construed to include any manner in which a document or information Company is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or incorporated by reference or to be contained or incorporated by reference in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated, audited balance sheet of the Company as of June 30October 2, 2004 2012 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders shareholders of the Company in connection with the meeting of the Company’s stockholders Company Shareholder Meeting (as amended or supplemented from time to consider the adoption of this Agreement time and the Merger (including any document incorporated by reference therein, the “Company MeetingProxy Statement”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders shareholders of the Company and or on any other date of filing with the PartnersSEC, or at the time of the Company Meeting and at the Effective TimeShareholder Meeting, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement therein not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Shareholder Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act. If at any time prior to before the Effective Time Company Shareholder Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company which its Affiliates that should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement should be discovered by the Company or should, to the Company’s knowledge, occur, the Company shall shall, promptly after becoming aware thereof, inform the FundParent of such fact or event. As used in For purposes of this Agreement, the termterm “Affiliate” when used with respect to any party means any person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act. (d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all information required to be disclosed by the Company, including its Subsidiaries, in the reports that it files or submits under the Exchange Act, is accumulated and communicated to the Company’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure. Since November 30, 2011, subject to any applicable grace periods, the Company and each of its officers and directors have been in compliance in all material respects with (i) the applicable listing and other rules and regulations of the New York Stock Exchange and (ii) the applicable provisions of Xxxxxxxx-Xxxxx Act of 2002, as amended and including the rules and regulations promulgated thereunder.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyin immaterial amounts. The consolidated, unaudited balance sheet of the Company as of June 30, 2004 2005 is referred to herein as the “Company Balance Sheet.” The principal executive officer of Company and the principal financial officer of Company (and each former principal executive officer or principal financial officer of Company) have made the certifications required by Sections 302 and 906 of the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), and the rules and regulations of the SEC promulgated thereunder, with respect to the Company SEC Reports filed since such certifications have been required. For purposes of the preceding sentence, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sxxxxxxx-Xxxxx Act. Since December 31, 2004, to the Company’s Knowledge, no former or current employee of the Company or any of its Subsidiaries, or any member of the Company’s public auditing firm, has alleged in writing to any of the executive officers of the Company that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices. (c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates that should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event. (d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. As used Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company is in this Agreement, compliance with the termapplicable listing and other rules and regulations of The NASDAQ National Market.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC U.S. Securities and Exchange Commission (“SEC”) since January 125, 2001 2021 (the “Lookback Date”). All such registration statements, forms, reports and other documents, as such documents have been amended since the time of their filing or furnishing (including exhibits and all other information incorporated therein and those registration statements, forms, reports and other documents that the Company may file or furnish after the date hereof until the Closingclosing) are referred to herein as the “Company SEC Reports.” Except ”. As of their respective filing dates or, if amended, as set forth in Section 3.4 of the Company Disclosure Scheduledate of such last amendment, the Company SEC Reports (i) were complied, and with respect to the Company SEC Reports filed or furnished after the date hereof will be filed on a timely basis and (ii) were or will be prepared in compliance comply, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (ii) did not, and the Company SEC Reports when filed, filed or furnished after giving effect to any amendments and supplements thereto filed prior to the date hereofhereof will not, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. As of the date hereof, there are no outstanding or unresolved comments received from the SEC with respect to the Company SEC Reports. As of the date hereof, the Company has not received any written notification that any of the Company SEC Reports is the subject of any material ongoing SEC investigation. None of the Company’s Subsidiaries has filed, is required to file with or is obligated furnish to file, the SEC any forms, reports, schedules, statements reports or other documents with or is otherwise subject to any reporting obligation under Section 13 or 15(d) of the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained in or to be contained in incorporated by reference into the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) IFRS applied on a consistent basis throughout the periods involved (except as may be indicated therein or in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.” (c) The information Subject to be supplied by the following sentence, (i) the Scheme Circular, on the date it is first mailed to holders of Company for inclusion in Shares and at the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion time of the Company Series A Preferred Stock will be registered under Court Meeting, and if amended or supplemented, at the Securities Act (including time of any amendments amendment or supplements, the “Registration Statement”)supplement thereto, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in light of the circumstances in which they shall be made, not misleading and (ii) the Scheme Circular will comply as to form in all material respects with the requirements of applicable Law. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to statements included or incorporated by reference in the Registration Statement not misleading. The Scheme Circular based on any information to be supplied by or on behalf of, or relates to, the Acquirer or its Subsidiaries. (d) The Company for inclusion is in compliance in all material respects with the joint proxy statement/prospectus Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder (the “Proxy StatementXxxxxxxx-Xxxxx Act”) ). Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be sent to the stockholders of the Company in connection with the meeting of filed or submitted by the Company’s stockholders principal executive officer and principal financial officer pursuant to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersXxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. (e) The Company has established and maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. The Company has designed such disclosure controls and procedures to ensure that all material information concerning the Company Meeting and at its Subsidiaries is made known on a timely basis to the Effective Time, contain any statement which, at such time and in light individuals responsible for the preparation of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for reports that the Company Meeting files or submits under the solicitation Exchange Act or Securities Act. (f) The Company has established and maintains a system of consents internal control over financial reporting (as defined in connection with Rules 13a-15(f) and 15d-15(f) under the Fund Consent Solicitation which has become false or misleading. If at any time prior to Exchange Act) as required by Rules 13a-15 and 15d-15 under the Effective Time any event relating to Exchange Act. (g) Since the Lookback Date, (i) none of the Company, any Affiliate of its Subsidiaries or any of their respective Representatives have received any bona fide complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or any of their respective internal accounting controls, including any bona fide complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices; and (as defined belowii) no attorney representing the Company or any of its Subsidiaries, whether or not employed thereby, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any of its Subsidiaries or any officers of their respective Representatives to the Company Board or directors of any committee thereof or to the Company’s chief legal officer or chief executive officer. (h) Since the Lookback Date, neither the Company nor any of themits Subsidiaries has entered into any transaction, should be discovered by or series of transactions, agreements, arrangements or understandings, and there are no proposed transactions as of the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in date of this Agreement, that would be subject to disclosure pursuant to Item 404 of Regulation S-K that has not been disclosed in the termCompany SEC Reports.

SEC Filings; Financial Statements; Information Provided. (a) All The Parent has filed all registration statements, forms, reports and other documents required to be filed by the Company Parent with the SEC since January 1, 2001 2004 and has made available to the Company copies of all registration statements, forms, reports and other documents filed by the Parent with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company Parent may file after the date hereof until the Closing) ), and any information about Genaissance Pharmaceuticals, Inc. included or incorporated into Parent’s Registration Statement on Form S-4 (Registration No. 333-127256), as amended from time to time, are referred to herein as the “Company Parent SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company The Parent SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Parent SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Parent SEC Reports or necessary in order to make the statements thereinin such Parent SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Parent is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) of Parent or Genaissance Pharmaceuticals, Inc. contained or to be contained in the Company Parent SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company Parent and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Parent and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company Parent as of June 30, 2004 3004 is referred to herein as the “Company Parent Balance Sheet.” (c) The information to be in the Registration Statement or in any Regulation M-A Filing (except, in each case, for information supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant Registration Statement or Regulation M-A Filing, as to which the Company Series A Preferred Stock issued in the Merger Parent makes no representation and the Company Common Stock issuable upon conversion which shall not constitute part of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), Parent SEC Reports for purposes of this Agreement) shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company Parent for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus (which shall be deemed to be sent include all information about or relating to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein definedParent) shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and the PartnersCompany, or at the time of the Company Stockholders Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Parent or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement/Prospectus should be discovered by the Parent or should occur, the Company Parent shall promptly inform the Fund. As used in this Agreement, the termCompany of such fact or event.

SEC Filings; Financial Statements; Information Provided. (a) All formsThe Company has filed or furnished all registration statements, reports reports, schedules and other documents required to be filed or furnished by the Company it or any of its Subsidiaries with the SEC since January 1December 31, 2001 2003 (collectively, including those that the Company may file after the date hereof until the Closing) are referred to herein as any amendments thereto, the “Company SEC Reports.” Except ”). As of their respective filing dates (or, if amended, as set forth in Section 3.4 of the Company Disclosure Scheduledate of such amendment), the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance accordance with, and complied in all material respects with with, the applicable requirements of the Securities Act, Exchange Act and the Exchange Securities Act, as the case may be, applicable to such Company and the rules and regulations of the SEC Reports. None promulgated thereunder, and none of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading, except to the extent corrected by a Company SEC Report filed subsequently (but prior to the date hereof). The Company has made available to Buyer complete and correct copies of all amendments and modifications effected prior to the date of this Agreement that have not yet been filed by the Company with the SEC but which are required to be filed. The Company has made available to Buyer true, correct and complete copies of all correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other, since December 31, 2003, including all SEC comment letters and responses to such comment letters by or on behalf of the Company. To the knowledge of the Company, as of the date hereof, none of the Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment. Each of the financial statements (including the related notes and schedules) of the Company included in, or incorporated by reference into, the Company SEC Reports (the “Company Financials”) complies in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, were prepared in accordance with United States generally accepted accounting principles (“GAAP”) (except, in the case of unaudited financial statements, as permitted by applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and their consolidated results of operations for the periods then ended (subject, in the case of unaudited financial statements, to normal year-end audit adjustments and the absence of footnotes). The Company has no current intention to correct or restate, and to the knowledge of the Company, there is not any basis to correct or restate any of the Company Financials. The Company has not had any disagreement with any of its auditors regarding material accounting matters or policies during any of its past three full fiscal years or during the current fiscal year-to-date. (b) None of the information supplied or to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 (or similar successor form) to be filed with the SEC by Buyer in connection with the issuance of Buyer Common Stock in the Merger (including amendments or supplements thereto) (the “Registration Statement”) will, at the time the Registration Statement becomes effective under the Securities Act, 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 the light of the circumstances under which they were are made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant Prospectus/Proxy Statement to which be filed with the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion SEC as part of the Company Series A Preferred Stock will be registered under the Securities Act Registration Statement (including any amendments or supplements, the “Registration Prospectus/Proxy Statement”), shall not will, at the time the Registration Prospectus/Proxy Statement is declared effective by first mailed to the SEC stockholders of the Company or at the time of the Company Stockholders Meeting or as of the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be they are made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Stockholders Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment or supplement to the Prospectus/Proxy Statement should be discovered by the Company or should occur, the Company shall, promptly after becoming aware thereof, inform Buyer of such fact or event. Notwithstanding the foregoing, no representation or warranty is made by the Company with respect to statements made or incorporated by reference therein about Buyer or Merger Sub supplied by Buyer or Merger Sub for inclusion or incorporation by reference in the Registration Statement or a supplement to the Prospectus/Proxy Statement, the Company shall promptly inform the Fund. As used in For purposes of this Agreement, the termterm “Affiliate” when used with respect to any Person shall mean any Person who is an “affiliate” of that Person within the meaning of Rule 405 under the Securities Act. (c) The Company maintains disclosure controls and procedures as required by Rule 13a-15 or 15d-15 under the Exchange Act to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents, and all such material information that is required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. The Company has established and maintains a system of internal controls over financial reporting required by Rules 13a-15(f) or 15d-15(f) of the Exchange Act sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of its consolidated financial statements in accordance with GAAP including policies and procedures that (i) require the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries, (ii) provide reasonable assurance that material information relating to the Company and its Subsidiaries is promptly made known to the officers responsible for establishing and maintaining the system of internal controls, (iii) provide assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company and its Subsidiaries are being made only in accordance with appropriate authorizations of management and the Company Board, (iv) provide reasonable assurance that access to assets is permitted only in accordance with management’s general or specific authorization, (v) provide reasonable assurance that the reporting of assets is compared with existing assets at regular intervals and appropriate action is taken with respect to any differences, (vi) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and its Subsidiaries and (vii) provide assurance that any significant deficiencies or material weaknesses in the design or operation of internal controls which are reasonably likely to materially and adversely affect the ability to record, process, summarize and report financial information, and any fraud, whether or not material, that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal controls utilized by the Company and its Subsidiaries, are adequately and promptly disclosed to the Company’s independent auditors and the audit committee of the Company’s Board of Directors. The Company has disclosed, based on its most recent evaluations, to the Company’s outside auditors and the audit committee of the Company Board (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) which are known to the Company and (B) any fraud, whether or not material, known to the Company that involves management or other employees who have a role in the preparation of financial statements or the Company’s internal control over financial reporting. The principal executive officer and principal financial officer of the Company have made all certifications required by the Xxxxxxxx-Xxxxx Act of 2002 and any related rules and regulations promulgated thereunder (the “Xxxxxxxx-Xxxxx Act”).

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January July 1, 2001 2013. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) , but excluding the Proxy Statement), as such documents have been amended since the time of their filing, are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 The Company has made available to the Parent copies of all comment letters received by the Company from the staff of the SEC prior to the date hereof with respect to the Company SEC Reports and all responses to such comment letters by or on behalf of the Company Disclosure Schedulefiled by the Company with the SEC prior to the date hereof. As of their respective dates and if amended prior to the date hereof, as of the date of the last such amendment, the Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as and the case may berules and regulations of the SEC thereunder, applicable to such Company SEC Reports. None of Reports and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were or will be made, not misleadingmisleading in any material respect. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13 or Section 15(d) of the Exchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated therein or in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, in each case in accordance with GAAP, except that the unaudited interim financial statements were were, are or are will be subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.” (c) The information Subject to be supplied by the Company for inclusion in following sentence, (i) the registration statement Proxy Statement, on Form S-4 pursuant the date the Proxy Statement is first mailed to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion Stock, at the time of any amendment or supplement thereto and at the time of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Stockholders Meeting, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in light of the circumstances in which they shall be made, not misleading in any material respect and (ii) the Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act applicable to the Proxy Statement. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to statements included or incorporated by reference in the Registration Proxy Statement not misleadingbased on any information supplied by or on behalf of the Parent or the Transitory Subsidiary for inclusion or incorporation by reference therein. (d) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. The information Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be supplied filed or submitted by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders principal executive officer and principal financial officer pursuant to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersXxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. (e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information concerning the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect known on a timely basis to the solicitation of proxies individuals responsible for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) preparation of the Company, or any officers or directors ’s filings with the SEC and other public disclosure documents. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termNew York Stock Exchange.

SEC Filings; Financial Statements; Information Provided. (a) All The Parent has filed all registration statements, forms, reports and other documents required to be filed by the Company Parent with the SEC since January 12, 2001 2021. All such registration statements, forms, reports and other documents (including exhibits and all other information incorporated therein and any supplements or amendments thereto and those registration statements, forms, reports and other documents that the Company Parent may file after the date hereof until the Closing) are referred to herein as the “Company Parent SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company ”. The Parent SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Company Parent SEC Reports when filedand (iii) except to the extent that information contained in a Parent SEC Report has been revised, after giving effect to any amendments and supplements thereto amended, modified or superseded by a later filed Parent SEC Report prior to the date hereof, contained did not or will not at the time they were or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Parent SEC Reports or necessary in order to make the statements thereinin such Parent SEC Reports, in the light of the circumstances under which they were made, not misleading. None The Parent has not as of the Companydate hereof received any written comments from the SEC with respect to any of the Parent SEC Reports which remain unresolved. To the Parent’s Subsidiaries has filedKnowledge, or none of the Parent SEC Reports is, as of the date hereof, subject to ongoing SEC review. No Subsidiary of the Parent is obligated required to filefile any form, any forms, reports, schedules, statements report or other documents document with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Parent SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q 10‑Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company Parent and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetyear‑end audit adjustments.” (c) The Parent is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be filed or submitted by the Parent’s principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. (d) The Parent maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to provide reasonable assurance that all information concerning the Parent that could have a material effect on the financial statements is made known on a timely basis to the individuals responsible for the preparation of the Parent’s filings with the SEC and other public disclosure documents. The Parent is in compliance in all material respects with the applicable listing and other rules and regulations of NYSE. The Parent has established and at all times since January 2, 2021 has maintained a system of internal control over financial reporting (as defined in Rule 13a-15 under the Exchange Act). Such internal controls are designed to provide reasonable assurance regarding the reliability of the Parent’s financial reporting and the preparation of Parent financial statements for external purposes in accordance with GAAP. The Parent’s principal executive officer and its principal financial officer have disclosed, based on the most recent evaluation of internal control over financial reporting prior to the date of this Agreement, to the Parent’s auditors and the audit committee of the Parent Board (and made available to the Company a summary of the significant aspects of such disclosure, if any) (i) all known significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Parent’s ability to record, process, summarize and report financial information, and (ii) any known fraud, whether or not material, that involves management or other employees who have a significant role in the Parent’s internal control over financial reporting. Since January 2, 2021, any material change in internal control over financial reporting and any significant deficiency or material weakness in the design or operation of internal control over financial reporting required to be disclosed in any Parent SEC Report or in any form, report or document filed by the Parent with the SEC has been so disclosed and each significant deficiency and material weakness previously so disclosed has been remediated in all material respects. (e) None of the information supplied or to be supplied by the Company Parent for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant Proxy Statement will, at the date it is first mailed to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion shareholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not and at the time of the Registration Statement is declared effective by the SEC Company Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall nottherein, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be they are made, not misleading. Subject to the accuracy of the first sentence of Section 2.5(f), the Registration Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder; provided, however, that no representation is false made by the Parent or misleading Merger Sub with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered therein based on information supplied by the Company which should be set forth in an amendment to the Registration Statement specifically for inclusion or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termincorporation by reference therein.

SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Public Company with the SEC since January 1September 18, 2001 2014. All such registration statements, forms, reports and other documents (including those that the Public Company may file after the date hereof until the Closing) are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Public Company SEC Reports (iA) were or will be filed on a timely basis and basis, (iiB) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated balance sheet of the Public Company as of June September 30, 2004 2016 is referred to herein as the “Public Company Balance Sheet.” (c) PricewaterhouseCoopers LLP, Public Company’s current auditors, is and has been at all times since its engagement by Public Company (i) “independent” with respect to Public Company within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board. (d) The information to be supplied by the or on behalf of Public Company for inclusion inclusion, or filed by the Public Company and incorporated by reference, in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Proxy Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Public Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Public Company Meeting”) and , which information shall be deemed to include all information about or relating to Public Company, the Partners in connection with Public Company Voting Proposal or the Fund Consent Solicitation (as herein defined) Public Company Meeting, shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersPublic Company, or at the time of the Public Company Meeting and at the Effective TimeMeeting, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at . (e) Public Company does not have and never has had any time prior to sales in or revenues from the Effective Time any event relating to the Company, any Affiliate (as defined below) State of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termIsrael.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2004 and has made available to the Parent copies of all registration statements, forms, reports and other documents filed by the Company with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements do not contain footnotes and were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated, unaudited balance sheet of the Company as of June 30March 31, 2004 2005 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by the Parent pursuant to which the Company Series A Preferred shares of Parent Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), or to be included or supplied by or on behalf of the Company for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company and the Parent (the “Joint Proxy Statement/Prospectus”) in connection with (i) the meeting of the Company’s stockholders to consider the adoption Company Voting Proposal (the “Company Stockholders Meeting”), and (ii) the meeting of this Agreement and the Parent’s stockholders (the “Parent Stockholders Meeting”) to consider the issuance of shares of Parent Common Stock pursuant to the Merger (the “Company MeetingParent Voting Proposal”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and or the PartnersParent, or at the time of the Company Stockholders Meeting and or the Parent Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation Parent Stockholders Meeting which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus should be discovered by the Company or should occur, the Company shall promptly inform the Fund. As used in this Agreement, the termParent of such fact or event.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2002. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or incorporated by reference or to be contained or incorporated by reference in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated, unaudited balance sheet of the Company as of June 30April 1, 2004 2005 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event. (d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. As used Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company is in this Agreementcompliance with the applicable listing and other rules and regulations of The Nasdaq National Market. The certificates of the Chief Executive Officer and Chief Financial Officer of the Company required by Rules 13a-14 and 15d-14 of the Exchange Act or 18 U.S.C. §1350 (Section 906 of SOX) with respect to the Company SEC Reports, the termas applicable, were true and correct in all material respects as of their respective dates.

SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports and other documents required to be filed by the Public Company with the SEC since January 1April 10, 2001 2014. All such registration statements, forms, reports and other documents (including those that the Public Company may file after the date hereof until the Closing) are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Public Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (iii) did not or will not at the time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, misleading in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated unaudited balance sheet of the Public Company as of June 30December 31, 2004 2016 is referred to herein as the “Public Company Balance Sheet.” (c) The information to be supplied by the or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Proxy Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Public Company in connection with the meeting of the Public Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Public Company Meeting”) and to consider the Partners issuance of shares of Public Company Common Stock in connection with the Fund Consent Solicitation Transaction (as herein definedthe “Public Company Voting Proposal”) under the NASDAQ Stock Market, Inc. (“NASDAQ”) rules (the “Public Company Stockholder Approval”), which information shall be deemed to include all information about or relating to Public Company, the Public Company Voting Proposal or the Public Company Meeting, shall not, on the date the Proxy Statement is first mailed to stockholders of the Public Company and the Partnersor Private Company, or at the time of the Public Company Meeting and or at the Effective TimeClosing, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior . (d) Public Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002, as amended (the “Xxxxxxxx-Xxxxx Act.” Each required form, report and document containing financial statements that has been filed with or submitted to the Effective Time SEC was accompanied by any event certifications required to be filed or submitted by Public Company’s principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. (e) Public Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information concerning Public Company is made known on a timely basis to the individuals responsible for the preparation of Public Company’s filings with the SEC and other public disclosure documents. Public Company is in compliance in all material respects with the applicable listing and other rules and regulations of the Nasdaq Stock Market. (f) As of the date of this Agreement, (i) Public Company has timely responded to all comment letters of the staff of the SEC relating to the Public Company SEC Reports, and (ii) the SEC has not advised Public Company that any final responses are inadequate, insufficient or otherwise non-responsive. To the extent such comment letters, written inquiries and enforcement correspondence are not publicly available on the SEC’s XXXXX system, (x) Public Company has made available to the Company true, correct and complete copies of all comment letters, written inquiries and enforcement correspondence between the SEC, on the one hand, and Public Company, on the other hand, occurring between April 10, 2014 and the date of this Agreement and (y) will, reasonably promptly following the receipt thereof, make available to the Private Company any such correspondence sent or received after the date hereof. To the Knowledge of Public Company, as of the date of this Agreement, none of the Public Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment. (g) As of the date hereof, neither Public Company nor, to the Knowledge of Public Company, any Affiliate (as defined below) of the Companydirector, officer, employee, or any officers internal or directors external auditor of Public Company has received written notice, or otherwise had or obtained actual Knowledge, of any of themsubstantive material complaint, should be discovered by the allegation, assertion or claim that Public Company which should be set forth has engaged in an amendment to the Registration Statement questionable accounting or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termauditing practices.

SEC Filings; Financial Statements; Information Provided. (a) All The Buyer has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company Buyer with the SEC since January 1February 6, 2001 2014. All such registration statements, forms, reports and other documents (including those that the Company Buyer may file after the date hereof until the Closing) are referred to herein as the “Company Buyer SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Company Buyer SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Company Buyer SEC Reports when filed, after giving effect to any amendments and supplements thereto (iii) did not or will not at the time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Reports or necessary in order to make the statements thereinin such Buyer SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Buyer SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in accordance with GAAP the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.” (c) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2013. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except As of their respective dates or, if amended prior to the date hereof, as set forth in Section 3.4 of the Company Disclosure Scheduledate of the last such amendment, the Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleadingmisleading in any material respect. Neither the Company nor any Subsidiary has received from the SEC or any other Governmental Entity any written comments or questions with respect to any of the Company SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC that are not resolved, or has received any written notice from the SEC or other Governmental Entity that such Company SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the Company’s Knowledge, there is not, as of the date of this Agreement, any investigation or review being conducted by the SEC or any other Governmental Entity of any Company SEC Reports (including the financial statements included therein). None of the Company’s Subsidiaries has filed, or is obligated required to file, file any forms, reports, schedules, statements reports or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and operations, cash flows and changes in stockholders’ equity for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.” (c) The information to be supplied by or on behalf of the Company for inclusion in the registration statement Schedule TO or the Offer Documents, on Form S-4 pursuant the date the Schedule TO is filed with the SEC and on the date the Offer Documents are first published, sent or given to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Stock, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in light of the Registration Statement circumstances in which they shall be made, not misleadingmisleading in any material respect. (d) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act. The information Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be supplied filed or submitted by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders principal executive officer and principal financial officer pursuant to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersXxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. Neither the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of nor any of themits executive officers has received written notice from any Governmental Entity challenging or questioning the accuracy, should be discovered by the Company which should be set forth in an amendment to the Registration Statement completeness, form or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termmanner of filing of such certifications.

SEC Filings; Financial Statements; Information Provided. (a) All Except as set forth in Section 3.4(a) of the Company Disclosure Schedule, all forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, and the Exchange Act, as the case may be, applicable to such Company SEC Reports. None of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained any untrue statement of a material fact or omitted 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 were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 2004, a copy of which has been provided to CNLRP and is attached hereto as Exhibit E hereto, is referred to herein as the “Company Balance Sheet.” (c) The Company has established and maintained (i) disclosure controls and procedures (as defined in Rule 13a-15 promulgated under the Exchange Act) and (ii) internal control over financial reporting (as defined in Rule 13a-15 promulgated under the Exchange Act). To Company’s Knowledge, (i) such disclosure controls and procedures are effective to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company’s senior management by others within those entities, particularly during the period when the Company’s periodic reports to which such information relates are required to be prepared, (ii) such internal control over financial reporting provides reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, (iii) there are no significant deficiencies or material weaknesses in the design or operation of Company’s internal control over financial reporting which could adversely affect Company’s ability to record, process, summarize and report financial data and (iv) there is no fraud, whether or not material, that involves management or other employees who have a significant role in Company’s internal control over financial reporting. The Company has made available to CNLRP complete and correct copies of all formally written descriptions of, and all policies, manuals and other documents promulgating, such disclosure controls and procedures and internal control over financial reporting. (d) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Common Stock and Company Series A C Preferred Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement Agreement, the Merger and the Merger Company Charter Amendments (the “Company Meeting”) and the Partners stockholders of CNLRP in connection with the Fund Consent Solicitation meeting of CNLRP’s stockholders to consider the adoption of this Agreement, the Merger and the CNLRP Charter Amendment (as herein definedthe “CNLRP Meeting”) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCNLRP, at the time of the Company Meeting and CNLRP Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation CNLRP Meeting which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, Company or any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the FundCNLRP. As used in this Agreement, the termterm “Affiliate” shall have the same meaning as such term is defined in Rule 405 promulgated under the Securities Act. The Registration Statement shall comply in all material respects as to form and substance with the requirements of the Securities Act. The Proxy Statement shall comply in all material respects as to form and substance with the requirements of the Exchange Act. The Company makes no representation or warranty with respect to any information supplied by CNLRP which is contained in the Registration Statement or Proxy Statement.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January 1March 28, 2001 (including those that the Company may file after the date hereof until the Closing) 2009. All such registration statements, forms, reports, certifications and other documents are referred to herein as the “Company SEC ReportsDocuments.” Except as set forth in Section 3.4 To the extent that the form of any Company SEC Document available on the SEC’s XXXXX system reflects the redaction of any of such Company Disclosure ScheduleSEC Document’s terms, the Company has made available to Parent an unredacted copy of such Company SEC Reports (i) Document. The Company has made available to the Parent copies of all comment letters received by the Company from the staff of the SEC since March 28, 2009 and all responses to such comment letters by or on behalf of the Company. The Company SEC Documents at the time filed, or as amended prior to the date of this Agreement, were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as Act and the case may be, rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of the Company SEC Reports when filedDocuments, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained did not contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Documents or necessary in order to make the statements thereinin such Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, Company is subject to the reporting requirements of Section 13 or is obligated to file, any forms, reports, schedules, statements or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)3.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The unaudited consolidated, audited balance sheet of the Company as of June March 30, 2004 2012 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied Deloitte & Touche LLP, the Company’s current auditors, is and has been at all times since its engagement by the Company for inclusion in the registration statement on Form S-4 pursuant (x) “independent” with respect to which the Company Series A Preferred Stock issued within the meaning of Regulation S-X and (y) in compliance with subsections (g) through (l) of Section 10A of the Merger Exchange Act (to the extent applicable) and the Company Common Stock issuable upon conversion related rules of the SEC and the Public Company Series A Preferred Stock will be registered under the Securities Act Accounting Oversight Board. (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue d) The proxy statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company with respect to the Company Meeting (including the information included in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger or incorporated by reference therein) (the “Company MeetingProxy Statement”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, or at the time of the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading, provided that the Company makes no representation with respect to any information supplied in writing by or on behalf of the Parent for inclusion in the Proxy Statement. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the Fund. As used in this Agreement, the termParent of such fact or event.

SEC Filings; Financial Statements; Information Provided. (a) All Except as described in Section 3.5(a) of the Company Disclosure Schedule, the Company has filed or furnished all registration statements, forms, reports reports, schedules, certifications and other documents required to be filed or furnished by the Company with the SEC since January 1, 2001 2004 (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” ”). Except as set forth described in Section 3.4 3.5(a) of the Company Disclosure Schedule, the Company SEC Reports (i) were as amended, supplemented and restated by Company SEC Reports that have been filed prior to the date hereof or will be filed on a timely basis and prior to the Closing) (iii) were complied (at the time filed) or will be prepared in compliance comply (when filed) as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (ii) did not (at the Company SEC Reports when time they were filed, after giving effect to any amendments and supplements thereto filed prior to ) or will not (at the date hereof, contained time they are filed) contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None As of the Company’s Subsidiaries has fileddate hereof, there are no outstanding or is obligated to file, any forms, reports, schedules, statements or other documents unresolved comments received from the SEC staff with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available respect to the SECCompany SEC Documents. (b) Each Except as described in Section 3.5(b) of the Company Disclosure Schedule, each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (as amended, supplemented and restated by Company SEC Reports that have been filed prior to the date hereof or will be filed prior to the Closing) at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were was or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not adjustments, none of which has been and are not expected to be or will be, in the aggregate, material to the CompanyCompany and its Subsidiaries, taken as a whole. The consolidated unaudited balance sheet of the Company as of June September 30, 2004 2006 is referred to herein as the “Company Balance Sheet.” (c) The proxy statement to be filed by, and sent to the stockholders of, the Company in connection with the Company Meeting (the “Proxy Statement”) will comply as to form in all material respects with the requirements of the Exchange Act. The information supplied or to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement Proxy Statement, on Form S-4 pursuant the respective dates the Proxy Statement is filed with the Commission and on the date it is first published, sent or given to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion stockholders of the Company Series A Preferred Stock will be registered under and at the Securities Act (including any amendments or supplements, time of the “Registration Statement”)Company Stockholders Meeting, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall nottherein, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be they are made, is false not misleading; provided, that the Company makes no representation or misleading with respect to warranty concerning any material fact, information supplied by the Buyer or omit to state any material fact necessary in order to make the statements made Acquisition Sub for inclusion in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleadingStatement. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the Fund. As used Buyer of such fact or event. (d) Except as described in this AgreementSection 3.5(d) of the Company Disclosure Schedule, the termCompany is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”). Each required form, report and document containing financial statements that has been filed with or submitted to the SEC since January 1, 2004 was accompanied by the certifications required to be filed or submitted by the Company’s chief executive officer and chief financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder. (e) The Company maintains internal controls over financial reporting and disclosure controls and procedures (as such terms are defined in Rule 13a-15 and 15d-15 under the Exchange Act). Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company’s principal executive officer and its principal financial officer have disclosed, to the extent known to them and based on their most recent evaluation, to the Company’s auditors and the audit committee of the board of directors of the Company (x) all significant deficiencies in the design or operation of internal controls which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data and have identified for the Company’s auditors any material weakness in internal controls and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The Nasdaq National Market.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2004. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) and all documents incorporated by reference, in such registration statements, forms, reports and other documents are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the ”. The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, Company is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act or is obligated otherwise required to filefile any form, any forms, reports, schedules, statements report or other documents document with the SEC. As used in this Section 3.4(a)To the Company’s Knowledge, no investigation by the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available SEC with respect to the SECCompany or any of its Subsidiaries is pending or threatened. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were was or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated unaudited balance sheet of the Company as of June 30December 31, 2004 2006 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement Schedule TO or the Offer Documents, on Form S-4 pursuant the date the Schedule TO is filed with the SEC and on the date the Offer Documents are first published, sent or given to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Stock, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading, in light of the circumstances in which they shall be made. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus Proxy Statement (the “Proxy Statement”if required) to be sent to the stockholders holders of the shares of Company Common Stock in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed published, sent or given to stockholders holders of the shares of Company Common Stock and the Partners, at the time of the Company Meeting and at the Effective TimeMeeting, shall not contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances in which they shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates should be discovered by the Company which should be set forth in an amendment to the Registration Statement Schedule TO or a supplement to the Offer Documents or the Proxy Statement, the Company shall shall, promptly after becoming aware thereof, inform the FundParent of such fact or event. (d) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. As used Each required form, report and document containing financial statements that has been filed with or submitted to the SEC since July 21, 2003 was accompanied by the certifications required to be filed or submitted by the Company’s chief executive officer and chief financial officer pursuant to the Xxxxxxxx-Xxxxx Act and the applicable rules and regulations promulgated thereunder and, at the time of filing or submission of each such certification, such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder. (e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The Nasdaq Global Market. (f) Except as disclosed in the Company’s SEC Reports or the Company Disclosure Schedule, the Company has not, since January 1, 2004, received any written notification from its independent auditors, any Governmental Entity or any other Person of a (i) “reportable condition” or (ii) “material weakness” in the Company’s internal controls. For purposes of this Agreement, the termterms “reportable condition” and “material weakness” shall have the meanings assigned to them in the Statements of Auditing Standards 60, as in effect on the date hereof. (g) Set forth on Section 3.5(g) of the Company Disclosure Schedule is a list of all bank accounts held or maintained by the Company or its Subsidiaries.

SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Public Company and/or in connection with Merger Sub with the SEC since January 1, 2001 (including 2017. All such registration statements, forms, reports and other documents, as amended prior to the date hereof, and those that the Public Company may file after the date hereof until the Closing) , are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Public Company SEC Reports (iA) were or will be filed on a timely basis and basis, (iiB) were at the time filed (or if amended prior to the date hereof, when so amended), complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were filed (or if amended prior to the date hereof, contained when so amended) or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (or if amended prior to the date hereof, when so amended) (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof indicated and the consolidated assets, liabilities, business, financial condition, results of its operations and cash flows for the periods indicated, consistent with the books and records of Public Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated balance sheet of the Public Company as of June 30, 2004 2019 is referred to herein as the “Public Company Balance Sheet.” (c) Cherry Bekaert LLP, Public Company’s current auditors, is and has been at all times since its engagement by Public Company (i) “independent” with respect to Public Company within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board. (d) The information in the Registration Statement to be supplied by or on behalf of Public Company for inclusion or incorporation by reference in the Registration Statement or to be included or supplied by or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or any such Regulation M-A filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the or on behalf of Public Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to the stockholders of the Public Company and Merger Partner in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Public Company Meeting”) and , which information shall be deemed to include all information about or relating to Public Company, the Partners in connection with Public Company Voting Proposal, the Fund Consent Solicitation (Other Public Company Voting Proposals, as herein defined) applicable, or the Public Company Meeting, shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Public Company and the Partnersor Merger Partner, or at the time of the Public Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. (e) Public Company has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. If at Public Company’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Public Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to Public Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sxxxxxxx-Xxxxx Act. Since January 1, 2017, Public Company’s principal executive officer and its principal financial officer have disclosed to Public Company’s auditors and the audit committee of the Public Company Board all known (i) significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adverse and materially affect the Company’s ability to record, process, summarize and report financial information, (ii) material weaknesses in the design and operation of internal controls over financial reporting, and (iii) any time prior fraud, whether or not material, that involves the management or other employees who have a significant role in the Public Company’s internal controls over financial reporting. Each of the Public Company and its Subsidiaries have materially complied with or substantially addressed such deficiencies, material weaknesses and/or fraud. (f) Public Company is in compliance in all material respects with the applicable provisions of the Sxxxxxxx-Xxxxx Act and the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act. Each required form, report and document containing financial statements that has been filed with or submitted to the Effective Time SEC was accompanied by any event relating certifications required to be filed or submitted by Public Company’s principal executive officer and principal financial officer pursuant to the CompanySxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any Affiliate (as defined below) such certification complied in all material respects with the applicable provisions of the Company, or any officers or directors of Sxxxxxxx-Xxxxx Act. Neither Public Company nor any of themits executive officers has received written notice from any Governmental Entity challenging or questioning the accuracy, should be discovered by completeness, form or manner of filing of such certifications. (g) Public Company is in compliance in all material respects with the Company which should be set forth in an amendment to applicable listing and other rules and regulations of Nasdaq. (h) As of the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in date of this Agreement, the termPublic Company has timely responded to all comment letters of the staff of the SEC relating to the Public Company SEC Reports, and the SEC has not advised the Public Company that any final responses are inadequate, insufficient or otherwise non-responsive. The Public Company has made available to the Merger Partner true, correct and complete copies of all comment letters, written inquiries and enforcement correspondence between the SEC, on the one hand, and the Public Company and any of its Subsidiaries, on the other hand, occurring since January 1, 2017 and will, reasonably promptly following the receipt thereof, make available to the Company any such correspondence sent or received after the date hereof. To the knowledge of the Public Company, as of the date of this Agreement, none of the Public Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment. (i) Each of the principal executive officer of the Public Company and the principal financial officer of the Public Company (or each former principal executive officer of the Public Company and each former principal financial officer of the Public Company, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act or Sections 302 and 906 of the Sxxxxxxx-Xxxxx Act and the rules and regulations of the SEC promulgated thereunder with respect to the Public Company SEC Reports, and the statements contained in such certifications were true and correct on the date such certifications were made. For purposes of this Section 4.5(i), “principal executive officer” and “principal financial officer” has the meanings given to such terms in the Sxxxxxxx-Xxxxx Act. (j) Neither the Public Company nor any of its Subsidiaries nor, to the knowledge of the Public Company, any director, officer, employee, or internal or external auditor of the Public Company or any of its Subsidiaries has received or otherwise had or obtained actual knowledge of any substantive material complaint, allegation, assertion or claim, whether written or oral, that the Public Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC Securities and Exchange Commission (the “SEC”) since January 131, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company may file or furnish after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities ActAct of 1933, as amended, and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. There are no off-balance sheet structures or transactions with respect to the Company or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in or incorporated by reference in the Company SEC Reports at the time filed (or to be filed) (i) complied (or will comply comply) as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, thereto and (ii) were (or will be be) prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on with respect to Form 10-Q under the Exchange Act Act). Each of the consolidated balance sheets (including, in each case, any related notes and schedules) contained or for normal year-end adjustments) and (iii) to be contained or incorporated by reference in the Company SEC Reports at the time filed fairly presented in all material respects (or will fairly present in all material respects) the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and each of the consolidated statements of income and of changes in financial position contained or to be contained or incorporated by reference in the Company SEC Reports (including, in each case, any related notes and schedules) fairly presented in all material respects (or will fairly present in all material respects) the consolidated results of operations, retained earnings and changes in financial position, as the case may be, of the Company and its operations and cash flows Subsidiaries for the periods indicatedset forth therein, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.” (c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, or at the time of the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform Parent of such fact or event. (d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the FundExchange Act. As Such disclosure controls and procedures are designed to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Company’s Chief Executive Officer and Chief Financial Officer, Management assessed the effectiveness of the Company’s internal control over financial reporting as of January 31, 2005. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Xxxxxxxx Commission (COSO) in this AgreementInternal Control-Integrated Framework. Based on such assessment, management believes that the Company’s internal controls over financial reporting is effective. The Company has disclosed, based on its most recent evaluation prior to the date hereof, to the Company’s auditors and the audit committee of the Company Board (A) any significant deficiencies in the design or operation of internal controls which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial data and has identified for the Company’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls. The Company has made available to Parent (i) a summary of the disclosure referenced by (A) and (B) above, made by management to the Company’s auditors and audit committee since January 31, 2003 and (ii) any other material communication since January 31, 2003 made by management or the Company’s auditors to the audit committee required or contemplated by listing standards of the Nasdaq National Market, the termaudit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since January 31, 2003, no material complaints from any source regarding accounting, internal accounting controls or auditing matters, and no concerns from Company employees regarding questionable accounting or auditing matters, have been received by the Company. The Company has made available to Parent a summary of all material complaints or concerns relating to other matters made since January 31, 2003 through the Company’s whistleblower hot-line or equivalent system for receipt of employee concerns regarding possible violations of Laws (as hereinafter defined). No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company Board or any committee thereof or to any director or officer of the Company or any of its Subsidiaries. (e) The Company is in compliance with the applicable listing and other rules and regulations of The Nasdaq National Market and has not since January 1, 2004 received any notice from The Nasdaq National Market asserting any non-compliance with such rules and regulations. (f) The Company and its Subsidiaries are, and have been since July 30, 2002, in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the “SOX Act”).

SEC Filings; Financial Statements; Information Provided. (a) All The Parent has filed all registration statements, forms, reports and other documents required to be filed by the Company Parent with the SEC since January 1, 2001 2004 and has made available to the Company copies of all registration statements, forms, reports and other documents filed by the Parent with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company Parent may file after the date hereof until the Closing) are referred to herein as the “Company Parent SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company The Parent SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Parent SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Parent SEC Reports or necessary in order to make the statements thereinin such Parent SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Parent is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Parent SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company Parent and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Parent and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company Parent as of June 30March 31, 2004 2005 is referred to herein as the “Company Parent Balance Sheet.” (c) The information to be in the Registration Statement or in any Regulation M-A Filing (except, in each case, for information supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant Registration Statement or Regulation M-A Filing, as to which the Company Series A Preferred Stock issued in the Merger Parent makes no representation and the Company Common Stock issuable upon conversion which shall not constitute part of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), Parent SEC Reports for purposes of this Agreement) shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company Parent for inclusion in the joint proxy statement/prospectus (the “Joint Proxy Statement”) /Prospectus (which shall be deemed to be sent include all information about or relating to the stockholders of Parent, the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement Parent Voting Proposal and the Merger (the “Company Parent Stockholders Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and or the PartnersParent, or at the time of the Company Stockholders Meeting and or the Parent Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation Parent Stockholders Meeting which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Parent or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus should be discovered by the Parent or should occur, the Company Parent shall promptly inform the Fund. As used in this Agreement, the termCompany of such fact or event.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) 2011. All such registration statements, forms, reports, certifications and other documents are referred to herein as the “Company SEC ReportsDocuments.” Except as set forth in Section 3.4 To the extent that the form of any Company SEC Document available on the SEC’s XXXXX system reflects the redaction of any of such Company Disclosure ScheduleSEC Document’s terms, the Company has made available to Parent an unredacted copy of such Company SEC Reports (i) Document. The Company has made available to the Parent copies of all comment letters received by the Company from the staff of the SEC since January 1, 2011 and all responses to such comment letters by or on behalf of the Company. The Company SEC Documents at the time filed, or as amended prior to the date of this Agreement, were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as Act and the case may be, rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of the Company SEC Reports when filedDocuments, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained did not contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Documents or necessary in order to make the statements thereinin such Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, Company is subject to the reporting requirements of Section 13 or is obligated to file, any forms, reports, schedules, statements or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)3.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The unaudited consolidated, audited balance sheet of the Company as of June 30December 31, 2004 2012 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied Pricewaterhouse Coopers LLP, the Company’s current auditors, is and has been at all times since its engagement by the Company for inclusion in the registration statement on Form S-4 pursuant (x) “independent” with respect to which the Company Series A Preferred Stock issued within the meaning of Regulation S-X and (y) to the Company’s Knowledge, in compliance with subsections (g) through (l) of Section 10A of the Merger Exchange Act (to the extent applicable) and the Company Common Stock issuable upon conversion related rules of the SEC and the Public Company Series A Preferred Stock will be registered under the Securities Act Accounting Oversight Board. (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue d) The proxy statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company with respect to the Company Meeting (including the information included in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger or incorporated by reference therein) (the “Company MeetingProxy Statement”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, or at the time of the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading, provided that the Company makes no representation with respect to any information supplied in writing by or on behalf of the Parent or its Affiliates for inclusion in the Proxy Statement. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the Fund. As used in this Agreement, the termParent of such fact or event.

SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Public Company with the SEC since January 1October 20, 2001 (including 2017. All such registration statements, forms, reports and other documents, as amended prior to the date hereof, and those that the Public Company may file after the date hereof until the Closing) , are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Public Company SEC Reports (iA) were or will be filed on a timely basis and basis, (iiB) were at the time filed (or if amended prior to the date hereof, when so amended), complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were filed (or if amended prior to the date hereof, contained when so amended) or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (or if amended prior to the date hereof, when so amended) (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof indicated and the consolidated assets, liabilities, business, financial condition, results of its operations and cash flows for the periods indicated, consistent with the books and records of Public Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated balance sheet of the Public Company as of June September 30, 2004 2018 is referred to herein as the “Public Company Balance Sheet.” (c) PricewaterhouseCoopers LLP, Public Company’s current auditors, is and has been at all times since its engagement by Public Company (i) “independent” with respect to Public Company within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board. (d) The information in the Registration Statement to be supplied by or on behalf of Public Company for inclusion or incorporation by reference in the Registration Statement or to be included or supplied by or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or any such Regulation M-A filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the or on behalf of Public Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to the stockholders of the Public Company and Merger Partner in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Public Company Meeting”) and , which information shall be deemed to include all information about or relating to Public Company, the Partners in connection with Public Company Voting Proposal, the Fund Consent Solicitation (Other Public Company Voting Proposals, as herein defined) applicable, or the Public Company Meeting, shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Public Company and the Partnersor Merger Partner, or at the time of the Public Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. (e) Public Company has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. If at Public Company’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Public Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to Public Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act. Since October 20, 2017, Public Company’s principal executive officer and its principal financial officer have disclosed to Public Company’s auditors and the audit committee of the Public Company Board all known (i) significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adverse and materially affect the Company’s ability to record, process, summarize and report financial information, (ii) material weaknesses in the design and operation of internal controls over financial reporting, and (iii) any time prior fraud, whether or not material, that involves the management or other employees who have a significant role in the Public Company’s internal controls over financial reporting. Each of the Public Company and its Subsidiaries have materially complied with or substantially addressed such deficiencies, material weaknesses and or fraud. (f) Public Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act. Each required form, report and document containing financial statements that has been filed with or submitted to the Effective Time SEC was accompanied by any event relating certifications required to be filed or submitted by Public Company’s principal executive officer and principal financial officer pursuant to the CompanyXxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any Affiliate (as defined below) such certification complied in all material respects with the applicable provisions of the Company, or any officers or directors of Xxxxxxxx-Xxxxx Act. Neither Public Company nor any of themits executive officers has received written notice from any Governmental Entity challenging or questioning the accuracy, should be discovered by completeness, form or manner of filing of such certifications. (g) Public Company is in compliance in all material respects with the Company which should be set forth in an amendment to applicable listing and other rules and regulations of Nasdaq. (h) As of the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in date of this Agreement, the termPublic Company has timely responded to all comment letters of the staff of the SEC relating to the Public Company SEC Reports, and the SEC has not advised the Public Company that any final responses are inadequate, insufficient or otherwise non-responsive. The Public Company has made available to the Merger Partner true, correct and complete copies of all comment letters, written inquiries and enforcement correspondence between the SEC, on the one hand, and the Public Company and any of its Subsidiaries, on the other hand, occurring since October 20, 2017 and will, reasonably promptly following the receipt thereof, make available to the Company any such correspondence sent or received after the date hereof. To the knowledge of the Public Company, as of the date of this Agreement, none of the Public Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment. (i) Each of the principal executive officer of the Public Company and the principal financial officer of the Public Company (or each former principal executive officer of the Public Company and each former principal financial officer of the Public Company, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act or Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act and the rules and regulations of the SEC promulgated thereunder with respect to the Public Company SEC Reports, and the statements contained in such certifications were true and correct on the date such certifications were made. For purposes of this Section 4.2(g), “principal executive officer” and “principal financial officer” has the meanings given to such terms in the Xxxxxxxx-Xxxxx Act. (j) Neither the Public Company nor any of its Subsidiaries nor, to the knowledge of the Public Company, any director, officer, employee, or internal or external auditor of the Public Company or any of its Subsidiaries has received or otherwise had or obtained actual knowledge of any substantive material complaint, allegation, assertion or claim, whether written or oral, that the Public Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices.

SEC Filings; Financial Statements; Information Provided. (a) All The Buyer has filed all registration statements, forms, reports and other documents required to be filed by the Company Buyer with the SEC since January 1, 2001 2002 and has made available to the Company copies of all registration statements, forms, reports and other documents filed by the Buyer with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company Buyer may file after the date hereof until the ClosingEffective Time) are referred to herein as the “Company Buyer SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company The Buyer SEC Reports (i) were or were, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, filed on a timely basis and basis, (ii) were or at the time filed, were, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will be, be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Buyer SEC Reports. None of , and (iii) did not at the Company time they were filed, and with respect to Buyer SEC Reports when filed, filed after giving effect to any amendments the date of this Agreement and supplements thereto filed prior to the date hereofEffective Time will not at the time they are filed, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Reports or necessary in order to make the statements thereinin such Buyer SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Buyer is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. There are no off-balance sheet structures or transactions with respect to the Buyer or any of its Subsidiaries that would be required to be reported or set forth in the Buyer SEC Reports. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained incorporated in the Company Buyer SEC Reports at the time filed (i) complied or complied, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will comply comply, as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or were, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or presented, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will fairly present present, the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Buyer and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company Buyer as of June 30December 31, 2004 is referred to herein as the “Company Buyer Balance Sheet.” (c) The information to be in the Registration Statement or in any Regulation M-A Filing (except, in each case, for information supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant Registration Statement or Regulation M-A Filing, as to which the Company Series A Preferred Stock issued in the Merger Buyer makes no representation and the Company Common Stock issuable upon conversion which shall not constitute part of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”Buyer SEC Reports for purposes of this Agreement), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company Buyer for inclusion in the joint proxy statement/prospectus (the “Joint Proxy Statement”) /Prospectus (which shall be deemed to be sent include all information about or relating to the stockholders of Buyer, the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement Buyer Voting Proposal and the Merger (the “Company Buyer Stockholders Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and or the PartnersBuyer, or at the time of the Company Shareholders Meeting and or the Buyer Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Shareholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which Buyer Stockholders Meeting that has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Buyer or any officers or directors of any of them, should be discovered by the Company which its Affiliates that should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus should be discovered by the Buyer or should occur, the Company Buyer shall promptly inform the FundCompany of such fact or event. (d) The Buyer maintains disclosure controls and procedures required by Rule 13a-15(e) or 15d-15(e) under the Exchange Act. As used Such disclosure controls and procedures are effective to provide reasonable assurance that information the Buyer is required to disclose in this Agreementreports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the termtime periods specified in SEC rules and forms, and that such information is accumulated and communicated to the Buyer’s management as appropriate, to allow timely decisions regarding required disclosure. The Buyer has disclosed, based on its most recent evaluation of internal control over financial reporting prior to the date hereof, to the Buyer’s auditors and the Audit Committee of the Buyer’s Board of Directors (A) any significant deficiencies or material weaknesses in the design or operation of internal control over financial reporting which are likely to adversely affect in any material respect the Buyer’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves management or other employees of the Buyer or its Subsidiaries who have a significant role in the Buyer’s internal control over financial reporting. Since January 1, 2002, neither the Buyer nor any of its Subsidiaries nor, to the knowledge of the Buyer, any director, officer, employee, auditor, accountant or representative of the Buyer or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Buyer or any of its Subsidiaries or their respective internal accounting controls including any material complaint, allegation, assertion or claim that the Buyer or any of its Subsidiaries has engaged in questionable accounting or auditing practices. No attorney representing the Buyer or any of its Subsidiaries, whether or not employed by the Buyer or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Buyer or any of its officers, directors, employees or agents to the Buyer’s Board of Directors or any committee thereof or to any director or officer of the Buyer. (e) The Buyer is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and with the applicable listing and other rules and regulations of The Nasdaq National Market and has not since January 1, 2002 received any notice from The Nasdaq National Market asserting any non-compliance with such rules and regulations. Each required form, report and document containing financial statements that the Buyer has filed with or submitted to the SEC since August 29, 2002 was accompanied by the certifications required to be filed or submitted by the Buyer’s principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, such certification was true and accurate and complied with the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder. Except as permitted by the Exchange Act, including, without limitation, Sections 13(k)(2) and (3), since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Buyer nor any of its affiliates has made, arranged or modified (in any material way) personal loans to any executive officer or director of the Buyer.

SEC Filings; Financial Statements; Information Provided. (a) All Buyer has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company Buyer with the SEC since January 1under all applicable securities Laws in the twelve (12) months preceding the date hereof. All such registration statements, 2001 forms, reports and other documents filed under all applicable securities Laws (including those that the Company Buyer may file after the date hereof until the Closing) are referred to herein as the “Company Buyer SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Company Buyer SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Company Buyer SEC Reports when filed, after giving effect to any amendments and supplements thereto (iii) did not or will not at the time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Reports or necessary in order to make the statements thereinin such Buyer SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Buyer SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in accordance with GAAP the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.” (c) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term

SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Public Company with the SEC since January 1for a period of at least twelve calendar months immediately preceding the execution of this Agreement. All such registration statements, 2001 (including forms, reports and other documents, as amended prior to the date hereof, and those that the Public Company may file after the date hereof until the Closing) , are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Public Company SEC Reports (iA) were or will be filed on a timely basis and basis, (iiB) were at the time filed (or if amended prior to the date hereof, when so amended), complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were filed (or if amended prior to the date hereof, contained when so amended) or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (or if amended prior to the date hereof, when so amended) (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated balance sheet of the Public Company as of June 30, 2004 2022 is referred to herein as the “Public Company Balance Sheet.” (c) The information in the Registration Statement to be supplied by or on behalf of Public Company for inclusion or incorporation by reference in the Registration Statement or supplied by or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or any such Regulation M-A filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the or on behalf of Public Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to the stockholders of the Public Company and Merger Partner in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Public Company Meeting”) and , which information shall be deemed to include all information about or relating to Public Company, the Partners in connection with Required Public Company Voting Proposal, the Fund Consent Solicitation Other Public Company Voting Proposals (as herein definedapplicable) or the Public Company Meeting, shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Public Company and the Partnersor Merger Partner, or at the time of the Public Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term.

SEC Filings; Financial Statements; Information Provided. (a) All forms, The Company has filed or furnished all material reports and other documents required to be filed or furnished by the Company it with the SEC since January 1from December 31, 2001 (including those that the Company may file after 2004 through the date hereof until the Closing) are referred to herein as (collectively, including any amendments thereto, the “Company SEC Reports.” Except ”). As of their respective filing dates (or, if amended, as set forth in Section 3.4 of the Company Disclosure Scheduledate of such amendment), the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance the SEC Reports complied in all material respects in accordance with the applicable requirements of the Securities ActAct (as defined herein), and the Exchange Act, as the case may beXxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and, applicable to such Company SEC Reports. None in each case, the rules and regulations promulgated thereunder and (ii) none of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except to the extent corrected by a Company SEC Report filed subsequently (but prior to the date hereof). None There has been no correspondence between the SEC, on the one hand, and the Company and any of the Company’s Subsidiaries has filedSubsidiaries, or is obligated to fileon the other hand, any formssince January 1, reports, schedules, statements or other documents with 2004 through the SECdate of this Agreement. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated date hereof, there are no material unresolved comments issued by the staff of the SEC with respect to any of the Company SEC Reports. The financial statements (including, in each case, any including the related notes and schedules) contained of the Company included in, or to be contained in incorporated by reference into, the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) (except, in the case of unaudited financial statements, as permitted by applicable rules and regulations of the SEC) generally applied on a consistent basis throughout during the periods involved (except as may be indicated in the notes to such thereto) and (ii) fairly present in all material respects the consolidated financial statements orposition of the Company and its consolidated subsidiaries as of the dates thereof and their consolidated results of operations for the periods then ended (subject, in the case of unaudited financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for to normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof audit adjustments and the results absence of its operations and cash flows for footnotes, none of which, individually or in the periods indicatedaggregate, except that the unaudited interim financial statements were has had or are subject to normal and recurring year-end adjustments that have not been and are not could reasonably be expected to be material to the Company. The unaudited balance sheet of the have a Company as of June 30, 2004 is referred to herein as the “Company Balance SheetMaterial Adverse Effect).” (cb) The Except with respect to information to be supplied by or on behalf of the Company Buyer or the Merger Sub for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of Company Meeting (the “Proxy Statement”), to the Company’s stockholders to consider knowledge, the adoption Proxy Statement and any other soliciting materials of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is or such materials are first mailed to the stockholders of the Company and the Partners, at the time of the Company Meeting and or at the Effective Timetime of any amendment or supplement thereof, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit omits to state any material fact necessary in order required to make the statements made in the be stated therein. The Proxy Statement not false or misleading; or omit will comply as to state any form in all material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection respects with the Fund Consent Solicitation which has become false or misleadingrequirements of the Exchange Act and the rules and regulations promulgated thereunder. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement should be discovered by the Company, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event. As used in For purposes of this Agreement, the termterm “Affiliate” when used with respect to any Person shall mean any Person who is an “affiliate” of that Person within the meaning of Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”). (c) The Company maintains disclosure controls and procedures as required by Rule 13a-15 or 15d-5 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company has disclosed, based on its most recent evaluations, to the Company’s outside auditors and the audit committee of the Board of Directors of the Company (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) which are known to the Company and reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, known to the Company that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. (d) The Company has made available to Buyer a complete and correct copy of any amendments or modifications which have not yet been filed with the SEC to Contracts which previously have been filed by the Company with the SEC pursuant to the Securities Act or the Exchange Act, all of which are listed in Section 3.4(d) of the Company Disclosure Schedule.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC since January 1, 2001 2018 (the “Lookback Date”). All such registration statements, forms, reports and other documents, as such documents have been amended since the time of their filing or furnishing (including exhibits and all other information incorporated therein and those registration statements, forms, reports and other documents that the Company may file or furnish after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except As of their respective filing dates or, if amended, as set forth in Section 3.4 of the Company Disclosure Scheduledate of such last amendment, the Company SEC Reports (i) were were, and the Company SEC Reports filed or furnished after the date hereof will be be, filed or furnished on a timely basis and basis, (ii) were complied, and with respect to the Company SEC Reports filed or furnished after the date hereof will be prepared in compliance comply, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (iii) did not, and the Company SEC Reports when filed, filed or furnished after giving effect to any amendments and supplements thereto filed prior to the date hereofhereof will not, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. As of the date hereof, there are no outstanding or unresolved comments received from the SEC with respect to the Company SEC Reports. To the Company’s Knowledge, as of the date hereof, the Company has not received any written notification that any of the Company SEC Reports is the subject of any material ongoing SEC investigation. None of the Company’s Subsidiaries has filed, is required to file with or is obligated furnish to file, the SEC any forms, reports, schedules, statements reports or other documents with or is otherwise subject to any reporting obligation under Section 13 or 15(d) of the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained in or to be contained in incorporated by reference into the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated therein or in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.” (c) The information Subject to be supplied by the Company for inclusion in following sentence, (i) the registration statement Proxy Statement, on Form S-4 pursuant the date it is first mailed to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion and at the time of the Company Series A Preferred Stock will be registered under Stockholders Meeting, and if amended or supplemented, at the Securities Act (including time of any amendments amendment or supplements, the “Registration Statement”)supplement thereto, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in light of the circumstances in which they shall be made, not misleading and (ii) the Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act applicable thereto. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to statements included or incorporated by reference in the Registration Proxy Statement not misleadingbased on any information supplied by or on behalf of Parent, US Holdco or Merger Sub or which relates to Parent, US Holdco or Merger Sub and is approved by Parent, US Holdco or Merger Sub for inclusion or incorporation by reference therein. (d) The Company is in compliance in all material respects with the applicable rules and regulations of the Xxxxxxxx-Xxxxx Act. The information Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be supplied filed or submitted by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders principal executive officer and principal financial officer pursuant to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersXxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. (e) The Company has established and maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. The Company has designed such disclosure controls and procedures to ensure that all information required to be disclosed by the Company Meeting in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and that all such information is accumulated and communicated to the Company’s management or persons performing similar functions, as appropriate to allow timely decisions regarding disclosure and to make the certifications required pursuant to Section 302 and 906 of the Sarbanes Oxley Act. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of the New York Stock Exchange. (f) The Company has established and maintains a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) as required by Rules 13a-15 and 15d-15 under the Exchange Act. (g) Since the Lookback Date, (i) none of the Company, any of its Subsidiaries or any of their respective Representatives have received any bona fide complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or any of their respective internal accounting controls, including any bona fide complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices; and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed thereby, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any of its Subsidiaries or any of their respective Representatives to the Company Board or any committee thereof or to the Company’s chief legal officer or chief executive officer. (h) The information supplied or to be supplied by or on behalf of the Company, or which relates to the Company and the text of the disclosure thereof is specifically approved in writing by the Company (including via email), for inclusion in any Parent Announcement, and at the Effective Time, time such Parent Announcement in its final form is first published such Parent Announcement shall not contain any untrue statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any a material fact, fact or omit to state any material fact necessary in order required to make the statements made therein, in light of the circumstances in which they shall be made, not misleading. (i) Each individual identified in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect definition of “Company’s Knowledge” has read the final form of the Parent Announcements and, to the solicitation of proxies for Company’s Knowledge, the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event factual information relating to the CompanyCompany contained in such final form of such Parent Announcements is true and correct in all material respects. (j) Except as disclosed in Section 3.5(j) of the Company Disclosure Schedule, any Affiliate (as defined below) none of the Company, or any officers or directors of any of them, should be discovered by the Company which should Board or the audit committee of the Company Board is aware of, and since the Lookback Date, none of the Company, the Company Board, the audit committee of the Company Board or the Company’s independent accountants have received any written notification of, any (i) “significant deficiency” in the internal controls over financial reporting of the Company, (ii) “material weakness” in the internal controls over financial reporting of the Company or (iii) fraud, whether or not material, that involves management or other employees of the Company who have a significant role in the internal controls over financial reporting of the Company. (k) Except for such items that are of the type to be set forth in an amendment the notes to the Registration Statement or a supplement to consolidated financial statements of the Proxy StatementCompany, the Company shall promptly inform is not a party to any material “off-balance sheet arrangements” of the Fund. As used type described in Instruction 8 to Item 303(b) of Regulation S-K of the SEC. (l) Since the Lookback Date, neither the Company nor any of its Subsidiaries has entered into any transaction, or series of transactions, agreements, arrangements or understandings, and there are no proposed transactions as of the date of this Agreement, that would be subject to disclosure pursuant to Item 404 of Regulation S-K that has not been disclosed in the Company SEC Reports. (m) Prior to the date of this Agreement, the termCompany has delivered or made available to Parent correct and complete copies of all comment letters from the SEC since the Lookback Date through the date of this Agreement with respect to any of the Company SEC Reports, together with all written responses of the Company thereto. There are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any of the Company SEC Reports, and, to the Company’s Knowledge, none of the Company SEC Reports is subject to ongoing SEC review or investigation.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January July 1, 2001 2001, and has made available to the Buyer copies of all registration statements, forms, reports and other documents filed by the Company with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company may file files after the date hereof until the ClosingEffective Time) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or were, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, filed on a timely basis and basis, (ii) were or at the time filed, were, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not at the time they were filed, and with respect to Company SEC Reports when filed, filed after giving effect to any amendments the date of this Agreement and supplements thereto filed prior to the date hereofEffective Time will not at the time they are filed, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. There are no off-balance sheet structures or transactions with respect to the Company or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained incorporated by reference in the Company SEC Reports at the time filed (i) complied or complied, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will comply comply, as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or were, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or presented, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will fairly present present, the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company as of June 30December 31, 2004 is referred to herein as the “Company Balance Sheet.” (c) Section 3.4(c) of the Company Disclosure Schedule contains complete and correct copies of the unaudited financial statements of Pinnacle Systems GmbH, Braunschweig, as of June 30, 2004, the audited financial statements of PS Miro Holdings Inc. & Co. KG, Munich, as of June 30, 2004 (collectively, the “German Financial Statements”). The German Financial Statements (i) have been prepared in accordance with German Generally Accepted Accounting Principles (Grundsätze ordnungsgemäßer Buchführung und Bilanzierung), including without limitation having regard to the principles of accounting and valuation continuity and in compliance with the pertinent commercial law provisions, applied on a consistent basis throughout the periods involved, (ii) fairly present the asset, financial and earnings situation of Pinnacle Systems GmbH, Braunschweig, and PS Miro Holdings Inc. & Co. KG, Munich, as of the dates indicated, consistent with the books and records of Pinnacle Systems GmbH, Braunschweig, and PS Miro Holdings Inc. & Co. KG, Munich, (iii) observe the principle of the minimum valuation (Niederstwertprinzip) and (iv) accurately and completely reflect all liabilities and contingent liabilities (including but not limited to taxes and accruals for severance payments under Articles 89b of the German Commercial Code and/or the Council Directive 86/653/EEC of December 18, 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents) of Pinnacle Systems GmbH, Braunschweig, and PS Miro Holdings Inc. & Co. KG, Munich. (d) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by the Buyer pursuant to which the Company Series A Preferred shares of Buyer Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), or to be included or supplied by or on behalf of the Company for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders shareholders and stockholders, respectively, of the Company and the Buyer (the “Joint Proxy Statement/Prospectus”) in connection with (i) the meeting of the Company’s stockholders shareholders to consider the adoption of this Agreement and the Merger Company Voting Proposal (the “Company Shareholders Meeting”) (which shall be deemed to include all information about or relating to the Company, the Company Voting Proposal and the Partners in connection with Company Shareholders Meeting), and (ii) the Fund Consent Solicitation meeting of the Buyer’s stockholders (as herein definedthe “Buyer Stockholders Meeting”) shall notto consider the issuance of shares of Buyer Common Stock and the amendment to the Buyer’s Certificate of Incorporation (the “Buyer Voting Proposals”), on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders shareholders and stockholders, respectively, of the Company and or the PartnersBuyer, or at the time of the Company Shareholders Meeting and or the Buyer Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Shareholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which Buyer Stockholders Meeting that has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company which its Affiliates that should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus should be discovered by the Company or should occur, the Company shall promptly inform the FundBuyer of such fact or event. (e) The Company maintains disclosure controls and procedures required by Rule 13a-15(e) or 15d-15(e) under the Exchange Act. As used Such disclosure controls and procedures are effective to provide reasonable assurance that information the Company is required to disclose in this Agreementreports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the termtime periods specified in SEC rules and forms, and that such information is accumulated and communicated to the Company’s management as appropriate, to allow timely decisions regarding required disclosure. The Company has disclosed, based on its most recent evaluation of internal control over financial reporting prior to the date hereof, to the Company’s auditors and the Audit Committee of the Company’s Board of Directors (A) any significant deficiencies or material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves management or other employees of the Company or its Subsidiaries who have a significant role in the Company’s internal control over financial reporting. Since January 1, 2002, neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, employee, auditor, accountant or representative of the Company or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s Board of Directors or any committee thereof or to any director or officer of the Company. (f) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and with the applicable listing and other rules and regulations of The Nasdaq National Market and has not since January 1, 2002 received any notice from The Nasdaq National Market asserting any non-compliance with such rules and regulations. Each required form, report and document containing financial statements that the Company has filed with or submitted to the SEC since August 29, 2002 was accompanied by the certifications required to be filed or submitted by the Company’s principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, such certification was true and accurate and complied with the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder. Except as permitted by the Exchange Act, including, without limitation, Sections 13(k)(2) and (3), since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company nor any of its affiliates has made, arranged or modified (in any material way) personal loans to any executive officer or director of the Company.

SEC Filings; Financial Statements; Information Provided. (a) All Parent has filed all registration statements, forms, reports and other documents required to be filed by the Company Parent with the SEC since January 1, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company Parent may file after the date hereof until the Closing) are referred to herein as the “Company "Parent SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company " The Parent SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the Regulations of the SEC thereunder applicable to such Company Parent SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Parent SEC Reports or necessary in order to make the statements thereinin such Parent SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of Parent is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act. (b) The certificates of the Chief Executive Officer and Chief Financial Officer of Parent required by Rules 13a-14 and 15d-14 of the Exchange Act or 18 U.S.C. Section 1350 (Section 906 of SOX) with respect to the Parent SEC Reports, as applicable, were true and correct in all material respects as of their respective dates. (c) Each of the consolidated financial statements balance sheets of Parent included in or incorporated by reference into the Parent SEC Reports (including, in each case, any related notes and schedulesnotes) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form fairly presents in all material respects with applicable accounting requirements the consolidated financial position of Parent and the published rules its Subsidiaries as of its date and regulations each of the consolidated statements of income, cash flow and stockholders' equity of Parent included in or incorporated by reference in the Parent SEC with respect theretoReports (including, (iiin each case, any related notes) were or will be prepared fairly presents in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout all material respects the consolidated results of operations, cash flows and stockholders' equity of Parent and its Subsidiaries for the periods involved set forth therein (except as may be indicated in the notes to such financial statements orsubject, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for to normal year-end adjustmentsaudit adjustments which in the aggregate were not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein. (d) None of Parent or any of its Subsidiaries has or is subject to any material Liabilities of any kind, other than those (i) fully reflected in, reserved against or otherwise described in the audited consolidated balance sheets of Parent and its Subsidiaries as of December 31, 2004 or the notes thereto, or (ii) incurred in the ordinary course of business consistent with past practice or pursuant to the transactions contemplated by this Agreement, or (iii) fairly presented or will fairly present the financial position set forth on Section 7.6(d) of the Company Parent Disclosure Schedule or as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material otherwise disclosed in writing to the Company. The unaudited balance sheet . (e) None of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by or on behalf of Parent or any of the Company Merger Subs for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) Section 262 Notice to be sent to the stockholders of Stockholders or in the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall notRegistration Statement will, on the date the Proxy Statement Section 262 Notice is first mailed to stockholders of the Company and Stockholders, or on the Partnersdate the Registration Statement is filed with the SEC, at any time it is amended or supplemented or at the time of it becomes effective under the Company Meeting and at the Effective TimeSecurities Act, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Section 262 Notice or the Registration Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the First Effective Time Time, any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Parent or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementSection 262 Notice or the Registration Statement should be discovered by Parent or should occur, the Company shall Parent shall, promptly after becoming aware thereof, inform the FundSelling Companies of such fact or event. As used Notwithstanding the foregoing, no representation is made by Parent or Merger Subs with respect to the information that has been or will be supplied by the Selling Companies, their Subsidiaries or their respective auditors, attorneys, financial advisors or other consultants or advisers for inclusion in this Agreement, the termSection 262 Notice or the Registration Statement.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1June 30, 2001 2002, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, except as set forth in Section 3.4(b) of the Company Disclosure Schedule, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None Reports including the provision of all statements and certifications required by (x) Rule 13a-14 or 15d-14 under the Exchange Act or (y) 18 U.S.C. §1350 (Section 906 of the Company SEC Reports when filedXxxxxxxx-Xxxxx Act of 2002), after giving effect to any amendments and supplements thereto (iii) did not or will not at the time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Company is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. There are no off-balance sheet structures or transactions with respect to the Company or any of its Subsidiaries has filed, that would be required to be reported or is obligated to file, any forms, reports, schedules, statements or other documents with set forth in the SECCompany SEC Reports. As used in this Section 3.4(a)3.4, the term “filedfile” and variations thereof shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in or incorporated by reference in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, thereto and (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act Act). Each of the consolidated balance sheets (including, in each case, any related notes and schedules) contained or for normal year-end adjustments) and (iii) to be contained or incorporated by reference in the Company SEC Reports at the time filed fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and each of the consolidated statements of operations, shareholders’ equity and cash flows contained or to be contained or incorporated by reference in the Company SEC Reports (including, in each case, any related notes and schedules) fairly presents, or will fairly present, the results of its operations operations, changes in shareholders’ equity and cash flows flows, as the case may be, of the Company and its Subsidiaries for the periods indicatedset forth therein, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company as of June September 30, 2004 2005 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by or on behalf of the Company for inclusion in the registration statement on Form S-4 any filing pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered Rule 14a-12 under the Securities Exchange Act (including any amendments or supplements, the each a “Registration StatementRegulation M-A Filing”), shall not at the time any Regulation M-A Filing is filed with the Registration Statement is declared effective by the SEC SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company for inclusion in the joint proxy statement/prospectus statement (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger Company Voting Proposal (the “Company Stockholders Meeting”) ), which shall be deemed to include all information about or relating to the Company, the Company Voting Proposal and the Partners in connection with the Fund Consent Solicitation (as herein defined) Company Stockholder Meeting, shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, or at the time of the Company Stockholders Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement should be discovered by the Company or should occur, the Company shall promptly inform the FundBuyer of such fact or event. (d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. As used Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. Section 3.4(d) of the Company Disclosure Schedule lists, and the Company has delivered or otherwise made available to the Buyer accurate and complete copies of, all written descriptions of, and all policies, manuals and other documents promulgating, such disclosure controls and procedures. (e) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in this Agreement, accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the termrecorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January 1, 2001 2010 and has made available to the Investor copies of all registration statements, forms, reports, certifications and other documents filed by the Company with the SEC since January 1, 2010, including all certifications and statements required by (i) Rule 13a-14 or 15d-14 under the Exchange Act or (ii) 18 U.S.C. §1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (the “Sarbanes Act”)). All such registration statements, forms, reports, certifications and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC ReportsDocuments.” Except as set forth in Section 3.4 All SEC Documents are publicly available on the SEC’s EXXXX system. The Company has made available to the Investor copies of all comment letters received by the Company from the staff of the Company Disclosure ScheduleSEC since January 1, 2010 and all responses to such comment letters by or on behalf of the Company Company. All SEC Reports Documents (iA) were or will be filed or deemed filed on a timely basis and basis, (iiB) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of Documents and (C) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such SEC Documents or necessary in order to make the statements thereinin such SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13 or Section 15(d) of the Exchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in SEC Documents at the Company SEC Reports time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including, without limitation, Regulation S-X), (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved covered thereby (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The unaudited Company’s audited consolidated balance sheet of the Company as of June 30December 31, 2004 2011 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied PricewaterhouseCoopers LLP, the Company’s current auditors, is and has been at all times since its engagement by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the i) “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication independent” with respect to the solicitation Company within the meaning of proxies for Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board. (d) There is no transaction, arrangement or other relationship between the Company Meeting and an unconsolidated or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior other off-balance sheet entity that is required to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered disclosed by the Company which should in its Exchange Act filings and is not so disclosed or that otherwise would be set forth in an amendment reasonably likely to the Registration Statement have a Company Material Adverse Effect. There are no such transactions, arrangements or a supplement to the Proxy Statement, other relationships with the Company shall promptly inform that may create contingencies or liabilities that are not otherwise disclosed by the Fund. As used Company in this Agreement, the termits Exchange Act filings.

SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 1998, and has made available to the Buyer copies of all registration statements, forms, reports and other documents filed by the Company with the SEC since such date. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “"Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the " The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13 or Section 15(d) of the Exchange Act. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in accordance with GAAP the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company as of June 30, 2004 2001 is referred to herein as the “"Company Balance Sheet.”" (c) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 S- 4 to be filed by the Buyer pursuant to which the Company Series A Preferred shares of Buyer Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “"Registration Statement”"), or for inclusion in any filing pursuant to Rule 165 or Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each, a "Regulation M-A Filing"), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “"Proxy Statement”/Prospectus") to be sent to the stockholders shareholders of the Company in connection with the meeting of the Company’s stockholders 's shareholders to consider the approval and adoption of this Agreement and the Plan of Merger (the “"Company Shareholders Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined") shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders shareholders of the Company and the PartnersCompany, or at the time of the Company Shareholders Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Shareholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, Company or any of its Affiliates, officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement/Prospectus, the Company shall promptly inform the Fund. As used in this Agreement, the termBuyer.

SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Public Company with the SEC since January 1, 2001 2006 and has made available to Merger Partner copies of all registration statements, forms, reports, certifications and other documents filed by Public Company with the SEC since January 1, 2006, including all certifications and statements required by (i) Rule 13a-14 or 15d-14 under the Exchange Act or (ii) 18 U.S. C. §1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Sarbanes Act”)). All such registration statements, forms, reports, certifications and other documents (including those that the Public Company may file after the date hereof until the Closing) are referred to herein as the “Public Company SEC ReportsDocuments.” Except as set forth in Section 3.4 All Public Company SEC Documents are publicly available on the SEC’s XXXXX system. Public Company has made available to Merger Partner copies of all comment letters received by Public Company from the staff of the Company Disclosure ScheduleSEC since January 1, the 2006 and all responses to such comment letters by or on behalf of Public Company. All Public Company SEC Reports Documents (iA) were or will be filed or deemed filed on a timely basis and basis, (iiB) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Public Company SEC Reports. None of Documents and (C) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Documents or necessary in order to make the statements thereinin such Public Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of Public Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SECExchange Act. As used in this Section 3.4(a)4.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including, without limitation, Regulation S-X), (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of Public Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The unaudited consolidated balance sheet of the Public Company as of June 30December 31, 2004 2007 contained in Public Company’s Annual Report on Form 10-K, as amended, for the period ended December 31, 2007 (the “Public Company Form 10-K”) filed with the SEC is referred to herein as the “Public Company Balance Sheet.” (c) Deloitte & Touche LLP, Public Company’s current auditors, is and has been at all times since its engagement by Public Company (i) “independent” with respect to Public Company within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board. (d) The information in the Registration Statement to be supplied by or on behalf of Public Company for inclusion or incorporation by reference in the Registration Statement, or to be included or supplied by or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the or on behalf of Public Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to (i) the stockholders of the Public Company in connection with the meeting Public Company Meeting and (ii) the stockholders of Merger Partner, which information shall be deemed to include all information about or relating to Public Company, the Company’s stockholders to consider Public Company Voting Proposals or the adoption of this Agreement and the Merger (the “Public Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) , shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Public Company and the Partnersor Merger Partner, or at the time of the Public Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Public Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement/Prospectus should be discovered by Public Company or should occur, the Public Company shall promptly inform the Fund. As used in this Agreement, the termMerger Partner of such fact or event.