THE LISTING OR MAINTENANCE REQUIREMENTS
THEREOF.
THE COMPANY IS, AND HAS NO REASON TO BELIEVE THAT IT WILL NOT IN THE
FORESEEABLE FUTURE CONTINUE TO BE, IN COMPLIANCE WITH THE LISTING AND
MAINTENANCE REQUIREMENTS FOR CONTINUED LISTING OF THE COMMON STOCK ON THE
TRADING MARKET ON WHICH THE COMMON STOCK IS CURRENTLY LISTED OR QUOTED.
THE
ISSUANCE AND SALE OF THE SECURITIES UNDER THE TRANSACTION DOCUMENTS DOES NOT
CONTRAVENE THE RULES AND REGULATIONS OF THE TRADING MARKET ON WHICH THE COMMON
STOCK IS CURRENTLY LISTED OR QUOTED, AND NO APPROVAL OF THE SHAREHOLDERS OF THE
COMPANY THEREUNDER IS REQUIRED FOR THE COMPANY TO ENTER INTO AND TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS, INCLUDING, WITHOUT
LIMITATION, TO ISSUE AND DELIVER TO THE INVESTORS THE SECURITIES CONTEMPLATED BY
TRANSACTION DOCUMENTS.
(X)
INVESTMENT COMPANY.
THE COMPANY IS NOT,
AND IS NOT AN AFFILIATE OF, AND IMMEDIATELY FOLLOWING CLOSING WILL NOT HAVE
BECOME, AN "INVESTMENT COMPANY" WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT
OF 1940, AS AMENDED.
(Y)
APPLICATION OF TAKEOVER PROTECTIONS.
THE
COMPANY HAS TAKEN ALL NECESSARY ACTION, IF ANY, IN ORDER TO RENDER INAPPLICABLE
ANY CONTROL SHARE ACQUISITION, BUSINESS
15
COMBINATION, POISON PILL (INCLUDING ANY DISTRIBUTION UNDER A RIGHTS AGREEMENT)
OR OTHER SIMILAR ANTI-TAKEOVER PROVISION UNDER THE COMPANY'S ARTICLES OF
INCORPORATION (OR SIMILAR CHARTER DOCUMENTS) OR THE LAWS OF ITS STATE OF
INCORPORATION THAT IS OR COULD BECOME APPLICABLE TO THE INVESTORS OR
SHAREHOLDERS OF THE COMPANY PRIOR TO ANY CLOSING DATE AS A RESULT OF THE
INVESTORS AND THE COMPANY FULFILLING THEIR OBLIGATIONS OR EXERCISING THEIR
RIGHTS UNDER THE TRANSACTION DOCUMENTS, INCLUDING WITHOUT LIMITATION THE
COMPANY'S ISSUANCE OF THE SECURITIES AND THE INVESTORS' OWNERSHIP OF THE
SECURITIES.
(Z)
NO ADDITIONAL AGREEMENTS.
EXCEPT AS
SPECIFIED IN SCHEDULE 3.1(Z), THE COMPANY DOES NOT HAVE ANY AGREEMENT OR
UNDERSTANDING WITH ANY INVESTOR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY
THE TRANSACTION DOCUMENTS OTHER THAN AS SPECIFIED IN THE TRANSACTION DOCUMENTS.
(AA)
COMPLIANCE WITH ERISA.
(I)
EACH MEMBER OF THE
ERISA GROUP HAS FULFILLED ITS OBLIGATIONS UNDER THE MINIMUM FUNDING STANDARDS OF
ERISA AND THE CODE WITH RESPECT TO EACH PLAN AND IS IN COMPLIANCE IN ALL
MATERIAL RESPECTS WITH THE PRESENTLY APPLICABLE PROVISIONS OF ERISA AND THE CODE
WITH RESPECT TO EACH PLAN. NO MEMBER OF THE ERISA GROUP HAS (I) SOUGHT A WAIVER
OF THE MINIMUM FUNDING STANDARD UNDER SECTION 412 OF THE CODE IN RESPECT OF ANY
PLAN, (II) FAILED TO MAKE ANY REQUIRED CONTRIBUTION OR PAYMENT TO ANY PLAN OR
MULTIEMPLOYER PLAN OR IN RESPECT OF ANY BENEFIT ARRANGEMENT, OR MADE ANY
AMENDMENT TO ANY PLAN OR BENEFIT ARRANGEMENT, WHICH HAS RESULTED OR COULD RESULT
IN THE IMPOSITION OF A LIEN OR THE POSTING OF A BOND OR OTHER SECURITY UNDER
ERISA OR THE CODE OR (III) INCURRED ANY LIABILITY UNDER TITLE IV OF ERISA OTHER
THAN A LIABILITY TO THE PBGC FOR PREMIUMS UNDER SECTION 4007 OF ERISA.
(ii)
The benefit plans not covered under clause
(a) above (including profit sharing, deferred compensation, stock option,