THE CASE MAY BE, IS BEING PREPARED.
THE COMPANY'S CERTIFYING OFFICERS HAVE
EVALUATED THE EFFECTIVENESS OF THE COMPANY'S CONTROLS AND PROCEDURES AS OF THE
DATE OF ITS MOST RECENTLY FILED PERIOD REPORT UNDER THE EXCHANGE ACT (SUCH DATE,
THE "EVALUATION DATE").
THE COMPANY PRESENTED IN ITS MOST RECENTLY FILED PERIOD
REPORT UNDER THE EXCHANGE ACT THE CONCLUSIONS OF THE CERTIFYING OFFICERS ABOUT
THE EFFECTIVENESS OF THE DISCLOSURE CONTROLS AND PROCEDURES BASED ON THEIR
EVALUATIONS AS OF THE EVALUATION DATE.
SINCE THE EVALUATION DATE, THERE HAVE
BEEN NO SIGNIFICANT CHANGES IN THE COMPANY'S INTERNAL CONTROLS (AS SUCH TERM IS
DEFINED IN ITEM 307(B) OF REGULATION S-K UNDER THE EXCHANGE ACT) OR, THE
COMPANY'S KNOWLEDGE, IN OTHER FACTORS THAT COULD SIGNIFICANTLY AFFECT THE
COMPANY'S INTERNAL CONTROLS AND THAT HAD HAD OR COULD REASONABLY BE EXPECTED TO
RESULT IN A MATERIAL ADVERSE EFFECT.
(S)
CERTAIN FEES.
EXCEPT AS SET FORTH IN THIS
AGREEMENT AND ON SCHEDULE 3.1(S), NO BROKERAGE OR FINDER'S FEES OR COMMISSIONS
ARE OR WILL BE PAYABLE BY THE COMPANY TO ANY BROKER, FINANCIAL ADVISOR OR
CONSULTANT, FINDER, PLACEMENT AGENT, INVESTMENT BANKER, BANK OR OTHER PERSON
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OTHER THAN TO
JP CAREY SECURITIES INC., PURSUANT TO A PLACEMENT AGENCY AGREEMENT, DATED
OCTOBER 23, 2003, AND THE COMPANY HAS NOT TAKEN ANY ACTION THAT WOULD CAUSE ANY
PURCHASER TO BE LIABLE FOR ANY SUCH FEES OR COMMISSIONS.
THE COMPANY AGREES
THAT THE PURCHASERS SHALL HAVE NO OBLIGATION WITH RESPECT TO ANY FEES OR WITH
RESPECT TO ANY CLAIMS MADE BY OR ON BEHALF OF ANY PERSON FOR FEES OF THE TYPE
CONTEMPLATED BY THIS SECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
(T)
PRIVATE PLACEMENT.
ASSUMING THE ACCURACY
OF THE PURCHASERS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.2, NO
REGISTRATION UNDER THE SECURITIES ACT IS REQUIRED FOR THE OFFER AND SALE OF THE
SECURITIES BY THE COMPANY TO THE PURCHASERS AS CONTEMPLATED HEREBY IN ACCORDANCE
WITH THE TERMS OF THE TRANSACTION DOCUMENTS. THE ISSUANCE AND SALE OF THE
SECURITIES HEREUNDER DOES NOT CONTRAVENE THE RULES AND REGULATIONS OF THE
TRADING MARKET.
(U)
INVESTMENT COMPANY.
THE COMPANY IS NOT, AND
IS NOT AN AFFILIATE OF, AN "INVESTMENT COMPANY" WITHIN THE MEANING OF THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
(V)
REGISTRATION RIGHTS.
EXCEPT AS SET FORTH ON
THE DISCLOSURE SCHEDULE TO THE REGISTRATION RIGHTS AGREEMENT, NO PERSON HAS ANY
RIGHT TO CAUSE THE COMPANY TO EFFECT THE REGISTRATION UNDER THE SECURITIES ACT
OF ANY SECURITIES OF THE COMPANY THAT HAVE NOT BEEN SATISFIED.
(W)
LISTING.
THE COMPANY IS CURRENTLY IN
COMPLIANCE WITH NASDAQ'S LISTING REQUIREMENTS.
12
(X)
TAX STATUS.
THE COMPANY AND EACH OF ITS
SUBSIDIARIES HAS MADE OR FILED ALL FEDERAL, STATE AND FOREIGN INCOME AND ALL
OTHER TAX RETURNS, REPORTS AND DECLARATIONS REQUIRED BY ANY JURISDICTION TO
WHICH IT IS SUBJECT (UNLESS AND ONLY TO THE EXTENT THAT THE COMPANY AND EACH OF
ITS SUBSIDIARIES HAS SET ASIDE ON ITS BOOKS PROVISIONS REASONABLY ADEQUATE FOR
THE PAYMENT OF ALL UNPAID