the
Transaction Documents or imposed by applicable securities laws.
The Company has
reserved a sufficient number of shares of Common Stock for issuance upon
conversion of the Preferred Stock and exercise of the Warrants.
As of the
relevant Closing Date, the Preferred Shares and the Warrant Shares have been
authorized for listing on the NASDAQ Small Cap Market.
5.5.
CONSENTS.
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY
OF THE TRANSACTION DOCUMENTS AND THE OFFER, ISSUANCE AND SALE OF THE SECURITIES
REQUIRE NO CONSENT OF, ACTION BY OR IN RESPECT OF, OR FILING WITH, ANY PERSON,
GOVERNMENTAL BODY, AGENCY, OR OFFICIAL OTHER THAN THOSE CONSENTS SET FORTH ON
SCHEDULE 5.5 AND FILINGS THAT HAVE BEEN MADE PURSUANT TO APPLICABLE STATE
SECURITIES LAWS AND POST-SALE FILINGS PURSUANT TO APPLICABLE STATE AND FEDERAL
SECURITIES LAWS WHICH THE COMPANY UNDERTAKES TO FILE WITHIN THE APPLICABLE TIME
PERIODS.
THE COMPANY HAS TAKEN ALL ACTION NECESSARY TO EXEMPT (I) THE ISSUANCE
AND SALE OF THE SECURITIES, (II) THE ISSUANCE OF THE PREFERRED SHARES UPON DUE
CONVERSION OF THE PREFERRED STOCK, (III) THE ISSUANCE OF THE WARRANT SHARES UPON
DUE EXERCISE OF THE WARRANTS, AND (IV) THE OTHER TRANSACTIONS CONTEMPLATED BY
THE TRANSACTION DOCUMENTS FROM THE PROVISIONS OF ANY ANTI-TAKEOVER, BUSINESS
COMBINATION OR CONTROL SHARE LAW OR STATUTE BINDING ON THE COMPANY OR TO WHICH
THE COMPANY OR ANY OF ITS ASSETS AND PROPERTIES MAY BE SUBJECT OR ANY PROVISION
OF THE COMPANY'S CERTIFICATE OF INCORPORATION, BYLAWS OR ANY STOCKHOLDER RIGHTS
AGREEMENT THAT IS OR COULD BECOME APPLICABLE TO THE INVESTORS AS A RESULT OF THE
TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING WITHOUT LIMITATION, THE ISSUANCE OF
THE SECURITIES AND THE OWNERSHIP, DISPOSITION OR VOTING OF THE SECURITIES BY THE
INVESTORS OR THE EXERCISE OF ANY RIGHT GRANTED TO THE INVESTORS PURSUANT TO THIS
AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.
5.6.
DELIVERY OF SEC FILINGS; BUSINESS.
COPIES OF THE COMPANY'S MOST
RECENT ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 2002
(THE "10-K"), AND ALL OTHER REPORTS FILED BY THE COMPANY PURSUANT TO THE 1934
ACT SINCE THE FILING OF THE 10-K AND
15
PRIOR TO THE DATE HEREOF (COLLECTIVELY, THE "SEC FILINGS") ARE AVAILABLE ON
EDGAR.
THE SEC FILINGS ARE THE ONLY FILINGS REQUIRED OF THE COMPANY PURSUANT TO
THE 1934 ACT FOR SUCH PERIOD.
THE COMPANY AND ITS SUBSIDIARIES ARE ENGAGED ONLY
IN THE BUSINESS DESCRIBED IN THE SEC FILINGS AND THE SEC FILINGS CONTAIN A
COMPLETE AND ACCURATE DESCRIPTION IN ALL MATERIAL RESPECTS OF THE BUSINESS OF
THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE.
5.7.
NO MATERIAL ADVERSE CHANGE.
EXCEPT AS IDENTIFIED AND DESCRIBED IN
THE SEC FILINGS OR AS DESCRIBED ON SCHEDULE 5.7(A), SINCE SEPTEMBER 30, 2003,
THERE HAS NOT BEEN:
(i)
any change in the consolidated assets, liabilities, financial
condition or operating results of the Company from that reflected in the
financial statements included in the SEC Filings, except for changes in the
ordinary course of business which have not and could not reasonably be expected