(AS DEFINED IN ERISA) FOR WHICH THE COMPANY
WOULD HAVE ANY MATERIAL LIABILITY; THE COMPANY HAS NOT INCURRED AND DOES NOT
EXPECT TO INCUR LIABILITY UNDER (I) TITLE IV OF ERISA WITH RESPECT TO
TERMINATION OF, OR WITHDRAWAL FROM, ANY "PENSION PLAN" OR (II) SECTIONS 412 OR
4971 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, INCLUDING THE REGULATIONS
AND PUBLISHED INTERPRETATIONS THEREUNDER (THE "CODE"); AND EACH "PENSION PLAN"
FOR WHICH THE COMPANY WOULD HAVE ANY LIABILITY THAT IS INTENDED TO BE QUALIFIED
UNDER SECTION 401(A) OF THE CODE IS SO QUALIFIED IN ALL MATERIAL RESPECTS AND
NOTHING HAS OCCURRED, WHETHER BY ACTION OR BY FAILURE TO ACT, WHICH WOULD CAUSE
THE LOSS OF SUCH QUALIFICATION.
(V)
THE COMPANY IS NOT INVOLVED IN ANY MATERIAL LABOR DISPUTE WITH ITS
EMPLOYEES NOR IS ANY SUCH DISPUTE, TO THE COMPANY'S KNOWLEDGE, THREATENED OR
IMMINENT.
(W)
ASSUMING THE TRUTH OF THE PURCHASERS' REPRESENTATIONS AND
ACKNOWLEDGMENTS CONTAINED IN SECTION 5 OF THE SECURITIES PURCHASE AGREEMENT,
NEITHER THE COMPANY NOR ANY PERSON ACTING ON ITS BEHALF (OTHER THAN THE
PURCHASERS, AS TO WHOM THE COMPANY MAKES NO REPRESENTATIONS) HAS OFFERED OR SOLD
THE UNITS BY MEANS OF ANY GENERAL SOLICITATION OR GENERAL ADVERTISING WITHIN THE
MEANING OF RULE 502(C) UNDER THE SECURITIES ACT.
THE COMPANY HAS NOT SOLD THE
UNITS TO ANYONE OTHER THAN THE PURCHASERS DESIGNATED IN THE SECURITIES PURCHASE
AGREEMENT.
EACH SHARE CERTIFICATE AND WARRANT SHARE CERTIFICATE SHALL BEAR
SUBSTANTIALLY THE SAME LEGEND SET FORTH IN SECTION 8 OF THE SECURITIES PURCHASE
AGREEMENT FOR AT LEAST SO LONG AS REQUIRED BY THE SECURITIES ACT.
(X)
OTHER THAN BREAN MURRAY & CO., INC. (AS PLACEMENT AGENT ON BEHALF
OF THE COMPANY) AND ANY SUBAGENTS IT MAY APPOINT PURSUANT TO THE EXECUTIVE
SUMMARY, NO FINDER, BROKER, AGENT, FINANCIAL PERSON OR OTHER INTERMEDIARY HAS
ACTED ON BEHALF OF THE COMPANY IN CONNECTION WITH THE SALE OF THE UNITS BY THE
COMPANY OR THE CONSUMMATION OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
THE COMPANY HAS NOT HAD ANY DIRECT OR INDIRECT
9
contact with any other investment banking firm (or similar firm) with respect to
the offer of the Units by the Company to the Purchasers or the Purchasers'
subscription for the Units.
4.
PLACEMENT AGENT APPOINTMENT AND COMPENSATION.
(A)
THE COMPANY
HEREBY APPOINTS THE PLACEMENT AGENT AND THE PLACEMENT AGENT AGREES TO ACT ON A
BEST EFFORTS BASIS WITH RESPECT TO THE MAXIMUM OFFERING, AS THE COMPANY'S
EXCLUSIVE AGENT IN CONNECTION WITH THE OFFERING.
THE COMPANY HAS NOT AND WILL
NOT MAKE, OR PERMIT TO BE MADE, ANY OFFERS OR SALES OF THE UNITS OTHER THAN
THROUGH THE PLACEMENT AGENT WITHOUT ITS PRIOR WRITTEN CONSENT.
THE PLACEMENT
AGENT HAS NO OBLIGATION TO PURCHASE ANY OF THE UNITS.
THE AGENCY OF THE
PLACEMENT AGENT HEREUNDER SHALL CONTINUE UNTIL THE LATER OF THE TERMINATION DATE
OR THE CLOSING (AS DEFINED BELOW).
(B)
THE COMPANY HAS CAUSED TO BE DELIVERED, OR MADE AVAILABLE VIA
EDGAR, TO THE PLACEMENT AGENT COPIES OF THE EXECUTIVE SUMMARY