SECURITIES LAWS AND REGULATIONS) 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, IN ALL CASES
OTHER THAN VIOLATIONS PURSUANT TO CLAUSES (I) OR (IV) (WITH RESPECT TO FEDERAL
AND STATE SECURITIES LAWS) ABOVE, FOR SUCH CONFLICTS, DEFAULTS, TERMINATIONS,
AMENDMENTS, ACCELERATION, CANCELLATIONS AND VIOLATIONS AS WOULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE EFFECT. THE BUSINESS
OF THE COMPANY AND ITS SUBSIDIARIES IS BEING CONDUCTED IN ALL MATERIAL RESPECTS
WITH ANY APPLICABLE LAWS, ORDINANCES OR REGULATIONS OF ANY GOVERNMENTAL ENTITY,
EXCEPT FOR POSSIBLE VIOLATIONS WHICH SINGULARLY OR IN THE AGGREGATE DO NOT AND
WILL NOT HAVE A MATERIAL ADVERSE EFFECT. NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES IS REQUIRED UNDER FEDERAL, STATE, FOREIGN OR LOCAL LAW, RULE OR
REGULATION TO OBTAIN ANY CONSENT, AUTHORIZATION OR ORDER OF, OR MAKE ANY FILING
OR REGISTRATION WITH, ANY COURT OR GOVERNMENTAL AGENCY IN ORDER FOR IT TO
EXECUTE, DELIVER OR PERFORM ANY OF ITS OBLIGATIONS UNDER THE TRANSACTION
DOCUMENTS OR ISSUE AND
4
SELL THE SHARES, THE CONVERSION SHARES, THE WARRANTS OR THE WARRANT SHARES IN
ACCORDANCE WITH THE TERMS HEREOF OR THEREOF (OTHER THAN ANY FILINGS WHICH MAY BE
REQUIRED TO BE MADE BY THE COMPANY WITH THE SECURITIES AND EXCHANGE COMMISSION
(THE "COMMISSION") OR STATE SECURITIES ADMINISTRATORS SUBSEQUENT TO THE CLOSING,
OR ANY REGISTRATION STATEMENT WHICH MAY BE FILED PURSUANT HERETO OR THERETO).
(F)
COMMISSION DOCUMENTS; COMMISSION FILINGS;
FINANCIAL STATEMENTS. THE COMMON STOCK IS REGISTERED PURSUANT TO SECTION 12(B)
OR 12(G) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE
ACT"), AND, EXCEPT AS DISCLOSED ON SCHEDULE 2.1(F) HERETO, THE COMPANY HAS
TIMELY FILED ALL REPORTS, SCHEDULES, FORMS, STATEMENTS AND OTHER DOCUMENTS
REQUIRED TO BE FILED BY IT WITH THE COMMISSION PURSUANT TO THE REPORTING
REQUIREMENTS OF THE EXCHANGE ACT, INCLUDING MATERIAL FILED PURSUANT TO SECTION
13(A) OR 15(D) OF THE EXCHANGE ACT SINCE JANUARY 1, 2002 (ALL OF THE FOREGOING,
INCLUDING FILINGS INCORPORATED BY REFERENCE THEREIN, BEING REFERRED TO HEREIN AS
THE "COMMISSION DOCUMENTS").
THE COMPANY HAS NOT PROVIDED TO THE PURCHASERS ANY
MATERIAL NON-PUBLIC INFORMATION OR OTHER INFORMATION WHICH, ACCORDING TO
APPLICABLE LAW, RULE OR REGULATION, SHOULD HAVE BEEN DISCLOSED PUBLICLY BY THE
COMPANY BUT WHICH HAS NOT BEEN SO DISCLOSED, OTHER THAN WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR PURSUANT TO A CONFIDENTIALITY
AGREEMENT. AT THE TIME OF ITS FILING, THE COMPANY'S FORM 10-Q FOR THE FISCAL
QUARTER ENDED SEPTEMBER 30, 2003 (THE "FORM 10-Q") COMPLIED IN ALL MATERIAL
RESPECTS WITH THE REQUIREMENTS OF THE EXCHANGE ACT AND THE RULES AND REGULATIONS
OF THE COMMISSION PROMULGATED THEREUNDER AND OTHER FEDERAL, STATE AND LOCAL
LAWS, RULES AND REGULATIONS APPLICABLE TO SUCH DOCUMENTS, AND THE FORM 10-Q DID
NOT CONTAIN 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