YEAR AS NOW CONDUCTED AND AS PROPOSED TO BE
CONDUCTED
13
INCLUDING ITS CAPITAL NEEDS TAKING INTO ACCOUNT THE PARTICULAR CAPITAL
REQUIREMENTS OF THE BUSINESS CONDUCTED BY THE COMPANY, AND PROJECTED CAPITAL
REQUIREMENTS AND CAPITAL AVAILABILITY THEREOF; AND (III) THE CURRENT CASH FLOW
OF THE COMPANY, TOGETHER WITH THE PROCEEDS THE COMPANY WOULD RECEIVE, WERE IT TO
LIQUIDATE ALL OF ITS ASSETS, AFTER TAKING INTO ACCOUNT ALL ANTICIPATED USES OF
THE CASH, WOULD BE SUFFICIENT TO PAY ALL AMOUNTS ON OR IN RESPECT OF ITS DEBT
WHEN SUCH AMOUNTS ARE REQUIRED TO BE PAID.
THE COMPANY DOES NOT INTEND TO INCUR
DEBTS BEYOND ITS ABILITY TO PAY SUCH DEBTS AS THEY MATURE (TAKING INTO ACCOUNT
THE TIMING AND AMOUNTS OF CASH TO BE PAYABLE ON OR IN RESPECT OF ITS DEBT).
(BB)
ACKNOWLEDGMENT REGARDING PURCHASERS' PURCHASE OF
SECURITIES.
THE COMPANY ACKNOWLEDGES AND AGREES THAT THE PURCHASERS ARE ACTING
SOLELY IN THE CAPACITY OF ARM'S LENGTH PURCHASERS WITH RESPECT TO THIS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED HEREBY.
THE COMPANY FURTHER ACKNOWLEDGES THAT
NO PURCHASER IS ACTING AS A FINANCIAL ADVISOR OR FIDUCIARY OF THE COMPANY (OR IN
ANY SIMILAR CAPACITY) WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND ANY STATEMENT MADE BY ANY PURCHASER OR ANY OF THEIR
RESPECTIVE REPRESENTATIVES OR AGENTS IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY IS NOT ADVICE OR A RECOMMENDATION AND IS MERELY
INCIDENTAL TO THE PURCHASERS' PURCHASE OF THE SECURITIES.
THE COMPANY FURTHER
REPRESENTS TO EACH PURCHASER THAT THE COMPANY'S DECISION TO ENTER INTO THIS
AGREEMENT HAS BEEN BASED SOLELY ON THE INDEPENDENT EVALUATION OF THE COMPANY AND
ITS REPRESENTATIVES.
(CC)
FORM S-3 ELIGIBILITY.
THE COMPANY IS ELIGIBLE
TO REGISTER THE RESALE OF ITS COMMON STOCK BY THE PURCHASERS UNDER FORM S-3
PROMULGATED UNDER THE SECURITIES ACT.
(DD)
NO DISAGREEMENTS WITH ACCOUNTANTS AND LAWYERS.
THERE ARE NO DISAGREEMENTS OF ANY KIND PRESENTLY EXISTING, OR REASONABLY
ANTICIPATED BY THE COMPANY TO ARISE THAT HAS HAD OR COULD REASONABLY BE EXPECTED
TO RESULT IN A MATERIAL ADVERSE EFFECT, BETWEEN THE ACCOUNTANTS AND LAWYERS
FORMERLY OR PRESENTLY EMPLOYED BY THE COMPANY AND THE COMPANY IS CURRENT WITH
RESPECT TO ANY FEES OWED TO ITS ACCOUNTANTS AND LAWYERS.
III.2
REPRESENTATIONS AND WARRANTIES OF THE
PURCHASERS.
EACH PURCHASER HEREBY, FOR ITSELF AND FOR NO OTHER PURCHASER,
REPRESENTS AND WARRANTS AS OF THE DATE HEREOF AND AS OF THE CLOSING DATE TO THE
COMPANY AS FOLLOWS:
(A)
ORGANIZATION; AUTHORITY.
IF A PURCHASER IS
AN ENTITY, SUCH PURCHASER IS AN ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN
GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION WITH FULL
RIGHT, CORPORATE OR PARTNERSHIP POWER AND AUTHORITY TO ENTER INTO AND TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS AND
OTHERWISE TO CARRY OUT ITS OBLIGATIONS THEREUNDER. THE EXECUTION, DELIVERY AND
PERFORMANCE BY SUCH PURCHASER OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION ON THE PART OF SUCH
PURCHASER.
EACH TRANSACTION DOCUMENT TO WHICH IT IS