EXHIBIT 10.2
SECURITIES PURCHASE AGREEMENT DATED MARCH 1, 2007
BETWEEN TOWER TECH HOLDINGS INC. AND THE
BUYERS NAMED THEREIN
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EXECUTION COPY
SECURITIES PURCHASE AGREEMENT
BY AND AMONG
TONTINE CAPITAL PARTNERS, L.P.,
TONTINE CAPITAL OVERSEAS MASTER FUND, L.P.
AND
TOWER TECH HOLDINGS INC.
MARCH 1, 2007
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TABLE OF CONTENTS
PAGE
ARTICLE 1
Definitions.........................................................1
ARTICLE 2 Purchase and
Sale of Shares.........................................3
2.1 Purchase of
Shares.....................................................3
2.2 Purchase Price and Form of
Payment; Delivery...........................3
2.3 Closing
Date...........................................................3
ARTICLE 3 Buyers'
Representations and Warranties..............................3
3.1 Organization and
Qualification.........................................3
3.2 Authorization;
Enforcement.............................................3
3.3 Securities
Matters.....................................................4
3.4
Information............................................................4
3.5 Restrictions on
Transfer...............................................4
ARTICLE 4
Representations and Warranties of the
Company.......................5
4.1 Organization and
Qualification.........................................5
4.2 Authorization;
Enforcement.............................................5
4.3 Capitalization; Valid
Issuance of Shares...............................5
4.4 No
Conflicts...........................................................6
4.5 SEC Documents; Financial
Statements....................................7
4.6 Absence of Certain
Changes.............................................7
4.7 Absence of
Litigation..................................................8
4.8 Patents,
Copyrights....................................................8
4.9 Tax
Status.............................................................8
4.10 Permits;
Compliance....................................................8
4.11 Environmental
Matters..................................................9
4.12 Title to
Property.....................................................10
4.13 No Investment Company or Real
Property Holding Company................10
4.14 No
Brokers............................................................10
4.15 Registration
Rights...................................................10
4.16 Exchange Act
Registration.............................................10
4.17 Labor
Relations.......................................................10
4.18 Transactions with Affiliates and
Employees............................10
4.19
Insurance.............................................................11
4.20 Approved Acquisitions of Shares;
No Anti-Takeover Provisions..........11
4.21
ERISA.................................................................11
4.22 Intentionally
Omitted.................................................11
4.23
Disclosure............................................................11
ARTICLE 5
Covenants..........................................................12
5.1 Form D; Blue Sky
Laws.................................................12
5.2 Use of
Proceeds.......................................................12
5.3
Expenses..............................................................12
5.4 No
Integration........................................................12
5.5 Board
Designee(s).....................................................12
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5.6 Observation
Rights....................................................12
5.7 Participation in Future
Issuances.....................................13
5.8 Future
Acquisitions...................................................13
ARTICLE 6 Conditions
To The Company's Obligation.............................13
6.1 Delivery of Transaction
Documents.....................................14
6.2 Payment of Purchase
Price.............................................14
6.3 Representations and
Warranties........................................14
6.4
Litigation............................................................14
ARTICLE 7 Conditions
to The Buyers' Obligation...............................14
7.1 Delivery of Transaction
Documents; Issuance of Shares.................14
7.2 Representations and
Warranties........................................14
7.3
Consents..............................................................14
7.4
Litigation............................................................14
7.5
Opinion...............................................................15
7.6 No Material Adverse
Change............................................15
7.7 Intentionally
Omitted.................................................15
7.8 Irrevocable
Proxy.....................................................15
7.9 Additional Buyer
Agreements...........................................15
7.10 Brickner Employment
Agreement.........................................15
7.11 Conversion of
Debt....................................................15
ARTICLE 8
Indemnification....................................................15
8.1 Indemnification by the
Company........................................15
8.2
Notification..........................................................15
ARTICLE 9 Governing
Law; Miscellaneous.......................................16
9.1 Governing
Law.........................................................16
9.2 Counterparts; Electronic
Signatures...................................16
9.3
Headings..............................................................16
9.4
Severability..........................................................16
9.5 Entire Agreement;
Amendments..........................................17
9.6
Notices...............................................................17
9.7 Successors and
Assigns................................................18
9.8 Third Party
Beneficiaries.............................................18
9.9
Publicity.............................................................18
9.10 Further
Assurances....................................................18
9.11 No Strict
Construction................................................18
9.12 Rights
Cumulative.....................................................19
9.13
Survival..............................................................19
9.14
Knowledge.............................................................19
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SECURITIES PURCHASE AGREEMENT
This SECURITIES
PURCHASE AGREEMENT, dated as of March 1, 2007, is
entered into by and among TOWER TECH HOLDINGS INC., a Nevada corporation (the
"COMPANY"), and the
investors identified
on the signature page
hereto (each a
"BUYER" and collectively, the "BUYERS").
RECITALS:
A. The
Company and the Buyers
are executing and delivering this
Agreement in reliance upon the exemptions from securities
registration
afforded
by Section 4(2) of the 1933 Act and Rule 506;
B. The
Buyers desire to purchase and the Company desires to issue
and sell, upon the terms and conditions set forth in this
Agreement,
10,266,667
shares of common stock, $0.001 par value per share of the Company;
and
C.
Contemporaneous with
the execution and delivery of this
Agreement, the parties hereto are executing and delivering a
Registration Rights
Agreement, in the form
attached hereto as EXHIBIT A, pursuant to which the
Company has agreed
under certain
circumstances
to register the resale
of the
Shares under the 1933 Act and the rules and regulations
promulgated
thereunder,
and applicable state securities laws.
AGREEMENT
NOW THEREFORE,
the Company and the Buyers hereby agree as follows:
ARTICLE 1
DEFINITIONS
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as
amended.
"2006 SEC DOCUMENTS" has the meaning set forth in SECTION 3.4.
"ACTION" means any action, suit claim, inquiry, notice of violation,
proceeding
(including any
partial proceeding such as a deposition) or
investigation against
or affecting the Company, any of its Subsidiaries or any
of their respective properties before or by any court, arbitrator,
governmental
or administrative agency, regulatory authority (federal, state,
county, local or
foreign), public board, stock market, stock exchange or trading
facility.
"AGREEMENT" means this Securities Purchase Agreement.
"BUYER" and "BUYERS" have the meaning set forth in the
preamble.
"CLOSING" has the meaning set forth in SECTION 2.3.
"CLOSING DATE" has the meaning set forth in SECTION 2.3.
"COMMON STOCK" means the Company's common stock, $0.001 par value per
share.
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10.2-Securities Purchase Agreement (Tower Tech) (2).DOC
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"COMPANY" has the meaning set forth in the preamble.
"ENVIRONMENTAL LAWS" has the meaning set forth in SECTION 4.11.
"ERISA" has the meaning set forth in SECTION 4.21.
"FOUNDERS" has the meaning set forth in SECTION 7.8.
"FOUNDERS SPA" has the meaning set forth in SECTION 7.9.
"FUTURE OFFERING" has the meaning set forth in SECTION 5.7.
"HAZARDOUS MATERIALS" has the meaning set forth in SECTION
4.11.
"INTELLECTUAL PROPERTY" has the meaning set forth in SECTION
4.8.
"INVESTMENT COMPANY" has the meaning set forth in SECTION 4.13.
"LEGAL REQUIREMENT"
means any federal, state, local, municipal,
foreign,
international,
multinational or other law, rule, regulation, order,
judgment, decree,
ordinance,
policy or directive,
including those entered,
issued, made,
rendered or required by any court, administrative or other
governmental body, agency or authority, or any arbitrator.
"LETTER AGREEMENT" has the meaning set forth in SECTION 7.9.
"MATERIAL ADVERSE
EFFECT" means any material adverse effect on the
business, operations, assets, financial condition or prospects of
the Company.
"NRS" has the meaning set forth in SECTION 4.20.
"OBSERVATION RIGHTS" has the meaning set forth in SECTION 5.6.
"OBSERVER" has the meaning set forth in SECTION 5.6.
"OFFERING NOTICE" has the meaning set forth in SECTION 5.7.
"PERMITS" has the meaning set forth in SECTION 4.10.
"PURCHASE PRICE" means
a price of $1.50 per share for the Shares to be
issued and sold to the Buyers at the Closing.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement
executed and delivered
contemporaneously with
this Agreement pursuant to which
the Company has agreed under certain circumstances to register the
resale of the
Shares under the 1933 Act and the rules and regulations
promulgated
thereunder,
and applicable state securities laws.
"RULE 506" means Rule 506 of Regulation D promulgated under the 1933
Act.
"SEC" means the United States Securities and Exchange
Commission.
"SEC DOCUMENTS" has the meaning set forth in SECTION 4.5.
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"SHARES" means the
10,266,667 shares of
Common Stock being issued and
sold under this Agreement.
"SUBSIDIARIES" means
with respect to the Company, Tower Tech Systems,
Inc, a Wisconsin corporation.
"TRANSACTION
DOCUMENTS" means this Agreement, the Registration Rights
Agreement, and any other documents contemplated by this
Agreement.
"TRANSFER INSTRUCTIONS" has the meaning set forth in SECTION
2.2.
ARTICLE 2
PURCHASE AND SALE OF SHARES
2.1
PURCHASE OF SHARES.
Subject to the terms and conditions of this
Agreement, on the
Closing Date, the Company shall issue and sell the Shares and
each Buyer shall
purchase from the Company the number of Shares as is set forth
below such Buyer's name on the signature page hereto.
2.2
PURCHASE PRICE AND FORM OF PAYMENT; DELIVERY. On the Closing
Date each Buyer
shall pay $1.50 per
share for the Shares to be issued and sold
to it at the Closing, for a total price of $15,400,000. The
Purchase Price shall
be paid by wire transfer of immediately available funds in accordance with the
Company's written
instructions.
At the Closing,
upon payment of the
Purchase
Price therefore by the
Buyers, the Company
will deliver
irrevocable
written
instructions
("TRANSFER
INSTRUCTIONS") to the transfer agent for the Company's
Common Stock to issue
certificates
representing the
Shares registered in
the
name of each Buyer and to deliver such certificates to or at the direction of
each Buyer. The Company shall not have the power to revoke or amend
the Transfer
Instructions without the written consent of the Buyers.
2.3
CLOSING DATE.
Subject to the
satisfaction (or written waiver)
of the conditions set forth in ARTICLE 6 and ARTICLE 7 below, the
closing of the
transactions
contemplated by this
Agreement shall be held on March 1, 2007, or
such other time as may be mutually agreed upon by the parties to this
Agreement
(the "CLOSING DATE"), at the offices of Barack Ferrazzano
Kirschbaum
Perlman &
Nagelberg LLP, 333 West Wacker Drive, Suite 2700, Chicago,
Illinois 60606 or
at
such other
location or by such other method (including exchange of signed
documents) as may be
mutually agreed upon by the parties to this Agreement
("CLOSING").
ARTICLE 3
BUYERS' REPRESENTATIONS AND WARRANTIES
Each Buyer represents and warrants to the Company that:
3.1
ORGANIZATION AND QUALIFICATION. Each of the Buyers is an
entity
of the type identified
on the signature page hereto, duly organized, validly
existing and in
good standing under the laws of the jurisdiction of its
organization, with full power and authority to purchase the Shares
and otherwise
perform its
obligations
under
this Agreement and the other Transaction
Documents.
3.2
AUTHORIZATION; ENFORCEMENT. This Agreement and each of the
other
Transaction Documents
and the consummation
of the transactions contemplated
hereby and thereby have been duly and validly authorized by, and duly executed
and delivered on
behalf of, such Buyer.
This Agreement
and each of the
other
Transaction Documents
constitutes the valid and binding agreement of such Buyer
enforceable in accordance with its terms, except as such enforceability may be
limited by: (i) applicable
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10.2-Securities Purchase Agreement (Tower Tech) (2).DOC
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bankruptcy,
insolvency,
reorganization,
moratorium or other
similar laws in
effect that limit creditors' rights generally; (ii) equitable
limitations on the
availability of specific remedies; and (iii) principles of
equity.
3.3
SECURITIES
MATTERS. In
connection
with
the Company's
compliance with applicable securities laws:
a. Such Buyer understands that the Shares are being
offered
and sold to it in reliance upon specific exemptions from the
registration
requirements of United
States and state
securities laws
and that the Company
is relying upon the
truth and accuracy
of, and
such Buyer's
compliance
with, the representations,
warranties,
agreements,
acknowledgments and understandings of such Buyer set forth
herein in order to determine the availability of such exemption and
the
eligibility of such Buyer to acquire the Shares.
b. Such Buyer is
purchasing the Shares
for its own
account,
not as a nominee
or agent, for investment purposes and not with a
present view towards
resale, except
pursuant to sales
exempted from
registration under the
1933 Act, or
registered under the
1933 Act as
contemplated by the Registration Rights Agreement.
c. Such Buyer is
an "accredited
investor" as that term is
defined in Rule 501(a) of Regulation D under the 1933 Act, and has
such
knowledge and
experience in
financial and business
matters as to be
capable of evaluating
the merits
and risks of an
investment
in the
Shares. Such
Buyer understands that its investment in the Shares
involves a significant
degree of risk. Such Buyer understands that no
United States
federal or state agency or any other government or
governmental agency
has passed upon or made any recommendation or
endorsement of the Shares.
3.4
INFORMATION. Such
Buyer has conducted its own due
diligence
examination of
the Company's business, financial condition, results of
operations, and prospects. In connection with such investigation,
such Buyer and
its representatives
(i) have reviewed the
Company's Form 10-KSB for the fiscal
year ended December 31, 2005, the Company's quarterly reports on
Form 10-QSB for
the three most recently concluded interim periods and the Company's Current
Reports on Form 8-K or
Form 8-K/A
filed in 2006
(and all exhibits included
therein and financial statements and schedules thereto and
documents (other than
exhibits to such documents) incorporated by reference therein,
being hereinafter
referred to herein as
the "2006 SEC
DOCUMENTS"), and (ii)
have been given an
opportunity to ask questions, to the extent such Buyer considered
necessary, and
have received answers
from, officers of the
Company concerning
the business,
finances and operations of the Company and information relating to
the offer and
sale of the Shares, and (iii) have received or had an opportunity
to obtain such
additional information
as they deem
necessary to make an
informed
investment
decision with respect to the purchase of the Shares.
3.5 RESTRICTIONS
ON TRANSFER. Such
Buyer understands that except
as provided in the Registration Rights Agreement, the issuance of
the Shares has
not been and is not being registered under the 1933 Act or
any applicable state
securities laws. Such Buyer may be required to hold the Shares
indefinitely and
the Shares may not be transferred unless (i) the Shares are sold
pursuant to an
effective registration
statement under the 1933 Act, or (ii) such
Buyer shall
have delivered
to the Company an opinion of counsel to the effect
that the
Shares to be sold or
transferred
may be sold or
transferred
pursuant to an
exemption from such registration, which opinion shall be reasonably
acceptable
to the Company. Such Buyer understands that until such time as the
resale of the
Shares has
been registered under the 1933 Act as contemplated by the
Registration Rights
Agreement or otherwise may be sold pursuant to an exemption
from registration,
certificates
evidencing
the Shares may bear a
restrictive
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10.2-Securities Purchase Agreement (Tower Tech) (2).DOC
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legend in
substantially the
following form (and a
stop-transfer order
may be
placed against transfer of the certificates evidencing such
Shares):
"THE
SHARES REPRESENTED BY
THIS CERTIFICATE
HAVE NOT BEEN
REGISTERED
UNDER THE
SECURITIES
ACT OF 1933 (THE
"ACT"). THE SHARES MAY NOT BE
OFFERED
FOR SALE, SOLD, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO
AN
EFFECTIVE
REGISTRATION
STATEMENT UNDER THE ACT, OR PURSUANT TO AN
EXEMPTION
FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS
TO BE
ESTABLISHED TO THE SATISFACTION OF THE CORPORATION."
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set
forth in the
Company's Disclosure Schedule attached
hereto, the Company represents and warrants to the Buyers that:
4.1
ORGANIZATION AND QUALIFICATION. The Company has no
subsidiaries
other than the
Subsidiaries. The
Company and each of its Subsidiaries is a
corporation, limited partnership, limited liability company, or
joint venture as
applicable, duly organized, validly existing and in good standing
under the laws
of the jurisdiction in
which it is
incorporated or organized, with corporate,
limited liability or limited partnership power and authority to
own, lease, use
and operate its
properties and to
carry on its business
as now operated
and
conducted. The
Company and each of
its Subsidiaries
is duly qualified as a
foreign corporation,
limited liability company or limited partnership to do
business and is in good standing in each jurisdiction in which its
ownership or
use of property
or the nature of the business conducted by it makes such
qualification necessary, except where the failure to be so
qualified or in good
standing would not have a Material Adverse Effect. Neither the Company nor any
Subsidiary is in violation of any provision of its respective certificate or
articles of incorporation, partnership agreement, bylaws or other
organizational
or charter documents, as the same may have been amended.
4.2
AUTHORIZATION;
ENFORCEMENT. The
Company has all requisite
corporate power and
authority to enter into and perform this Agreement and each
of the other Transaction Documents and to consummate the transactions
contemplated hereby
and thereby and to issue the Shares, in accordance with the
terms hereof and thereof. The execution and delivery of this
Agreement and each
of the other Transaction Documents by the Company and the
consummation by it of
the transactions
contemplated hereby and thereby (including without limitation,
the issuance of the Shares) have been duly authorized by the Company's Board
of
Directors and no further consent or authorization of the Company, its Board of
Directors, or its stockholders is required. This Agreement and each
of the other
Transaction Documents have been duly executed and delivered by the
Company. This
Agreement and each of
the other Transaction
Documents will constitute upon
execution and delivery by the Company, a legal, valid and binding
obligation of
the Company enforceable against the Company in accordance with its
terms, except
as such enforceability may be limited by: (i) applicable
bankruptcy, insolvency,
reorganization, moratorium or other similar laws in effect that
limit creditors'
rights generally;
(ii) equitable
limitations on the
availability of
specific
remedies; (iii)
principles of equity (regardless of whether such enforcement is
considered in a proceeding in law or in equity); and (iv) to the extent rights
to indemnification and contribution may be limited by federal
securities laws or
the public policy underlying such laws.
4.3
CAPITALIZATION; VALID ISSUANCE OF SHARES. As of the date
hereof,
the authorized capital
stock of the Company
consists of 100,000,000 shares of
Common Stock, of which
37,457,797
shares are issued and
outstanding,
and no
shares are held by the
Company as treasury
shares, and
10,000,000
shares of
preferred stock,
of which no shares are
issued and
outstanding.
All of such
outstanding shares
of
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Common Stock are duly authorized, validly issued, fully paid and
nonassessable.
The Shares have been
duly authorized
and when issued pursuant to the terms
hereof will be validly
issued, fully paid and nonassessable and will not be
subject to any encumbrances, preemptive rights or any other
similar contractual
rights of the
stockholders of the
Company or any other
person. No shares of
capital stock of the
Company are subject to preemptive rights or any other
similar rights of the
stockholders of the
Company or any liens or encumbrances
imposed through the actions or failure to act of the Company.
As of the date of
this Agreement,
except to the extent
described in the
preceding sentence
and
SCHEDULE 4.3 attached hereto, (i) there are no outstanding
options, warrants,
scrip, rights
to subscribe for, puts, calls, rights of first refusal,
agreements,
understandings, claims
or other commitments or rights of any
character whatsoever
relating to, or
securities or rights
convertible into or
exchangeable for any
shares of capital stock of the Company or any of its
Subsidiaries, or arrangements by which the Company or any of its
Subsidiaries is
or may become bound to issue additional shares of capital stock, (ii)
there are
no agreements or arrangements under which the Company or any of its
Subsidiaries
is obligated to register the sale of any of its or their
securities
under the
1933 Act (except
the Registration Rights Agreement) and (iii) there are no
anti-dilution or price adjustment provisions contained in any
security issued by
the Company (or in any agreement providing rights to security
holders) that will
be triggered by the
issuance of the
Shares. Except as may
be described in any
documents which have
been publicly filed by any of the Company's stockholders,
to the Company's
knowledge,
there are no
agreements
between the Company's
stockholders with
respect to the voting
or transfer of the
Company's capital
stock or with respect to any other aspect of the Company's
affairs.
4.4 NO
CONFLICTS. The
execution,
delivery and
performance of this
Agreement and each of
the other Transaction
Documents by the Company and the
consummation by the Company of the transactions contemplated hereby and
thereby
(including, without
limitation,
the issuance of
Shares) will not (i) conflict
with or result in a violation of any provision of the Articles of
Incorporation,
as amended, of the
Company or the Bylaws,
as amended,
of the Company, (ii)
violate or
conflict with, or result in a breach of any provision of, or
constitute a default
(or an event
which with
notice or lapse of
time or both
could become a
default) under,
or give to others
any rights of
termination,
amendment,
acceleration or cancellation of, any material agreement,
indenture,
patent, patent
license or instrument to which the Company or any of its
Subsidiaries is a party, or (iii) result in a violation of any
Legal Requirement
(including federal and
state securities laws and regulations and regulations of
any self-regulatory
organizations
to which the Company
or its securities
are
subject) applicable to
the Company or any of its Subsidiaries or by which any
property or asset of the Company or any of its Subsidiaries is
bound or affected
(except for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and
violations as would
not, individually
or in the
aggregate,
have a Material Adverse Effect). Neither the Company nor any of its
Subsidiaries
is in violation of its Certificate or Articles of Incorporation,
bylaws or other
organizational
documents and neither the Company nor any of its Subsidiaries
is
in default (and no event has occurred which with notice or lapse of time
would
result in a default) under, and neither the Company nor any of
its Subsidiaries
has taken any action or failed to take any action that would give to others any
rights of termination, amendment, acceleration or cancellation of,
any agreement
or instrument to which the Company or any of its Subsidiaries is a party or by
which any property or assets of the Company or any of its
Subsidiaries is
bound
or affected, except
for possible defaults as would not, individually or in the
aggregate, have a Material Adverse Effect. Except with respect to
any filings or
notices related to the
issuance of the Shares to be filed with the OTC Bulletin
Board, if any,
and as required under the 1933 Act and any
applicable
state
securities laws,
the Company is not required to obtain any consent,
authorization or order
of, or make any filing or registration with, any court,
governmental agency,
regulatory agency,
self regulatory
organization or stock
market or any third party in order for it to execute, deliver or perform any of
its obligations under the Transaction Documents. All consents, authorizations,
orders, filings
and registrations that the Company is required to effect
or
obtain pursuant to the
preceding sentence
have been obtained or effected on or
prior to the date hereof.
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4.5 SEC
DOCUMENTS; FINANCIAL STATEMENTS.
a. Except
as set forth on SCHEDULE 4.5, since December
31,
2004, the Company has timely filed all reports, schedules, forms,
statements and
other documents
required to be filed by it with the SEC pursuant to the
reporting requirements
of the 1933 Act and
the 1934 Act (all of the foregoing
filed prior to the date hereof and all exhibits included therein and financial
statements and
schedules thereto and documents (other than exhibits to such
documents)
incorporated by reference therein, being hereinafter referred to
herein as the "SEC
Documents"), or has
timely filed for a
valid extension of
such time of filing and has filed any such SEC Documents prior to
the expiration
of any such extension.
As of their respective dates, the SEC Documents complied
in all material
respects with the
requirements of the
Securities Act and
the
Exchange Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at
the time they
were filed with the SEC, contained any untrue statement of a material fact
or
omitted 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.
b. As of their
respective dates, the
financial statements
of
the Company included
in the SEC Documents
complied as to form in
all material
respects with
applicable accounting
requirements
and the published
rules and
regulations of the SEC with respect thereto. Such financial
statements have been
prepared in
accordance
with United States generally accepted accounting
principles, consistently applied, during the periods involved
(except (i) as may
be otherwise indicated
in such financial
statements or the notes thereto, or
(ii) in the case of
unaudited interim
statements,
to the extent they may
not
include footnotes,
year end adjustments or may be condensed or summary
statements) and
fairly present in all material respects the consolidated
financial position of
the Company and its
consolidated
Subsidiaries as of the
dates thereof and the
consolidated results
of their operations
and cash flows
for the periods then ended (subject, in the case of unaudited
statements,
to
normal year-end
audit adjustments). Except as set forth in the financial
statements of the
Company included in the SEC Documents, the Company has no
liabilities, contingent or otherwise, other than (i) liabilities
incurred in the
ordinary course
of business subsequent to September 30, 2006, and (ii)
obligations under
contracts and commitments incurred in the ordinary course
of
business and not required under generally accepted accounting principles to be
reflected in such
financial statements,
which, individually or taken in the
aggregate would not reasonably be expected to have a Material
Adverse Effect.
c. The
Company has established and maintains disclosure
controls and
procedures (as such
term is defined in Rule 13a-15(e) under the
1934 Act). Such disclosure controls and procedures:
(A) are designed to
ensure
that material
information relating
to the Company and its Subsidiaries is made
known to the Company's
chief executive
officer, president, chief operati
