ANY SUBSIDIARY IS A PARTY OR TO WHICH THE
PROPERTY OR ASSETS OF THE COMPANY OR ANY SUBSIDIARY ARE SUBJECT ARE INCLUDED AS
PART OF OR SPECIFICALLY IDENTIFIED IN THE SEC REPORTS, TO THE EXTENT SUCH
AGREEMENTS ARE REQUIRED TO BE INCLUDED OR IDENTIFIED PURSUANT TO THE RULES AND
REGULATIONS OF THE SEC.
(H)
ABSENCE OF OTHER OCCURRENCES.
SINCE THE
DATE OF THE LATEST AUDITED FINANCIAL STATEMENTS INCLUDED WITHIN THE SEC REPORTS,
EXCEPT AS SPECIFICALLY DISCLOSED IN THE SEC REPORTS OR IN
SCHEDULE 3.1(H) HERETO, (I) THERE HAS BEEN NO EVENT, OCCURRENCE OR DEVELOPMENT
THAT, INDIVIDUALLY OR IN THE AGGREGATE, HAS HAD OR THAT COULD RESULT IN A
MATERIAL ADVERSE EFFECT, (II) THE COMPANY HAS NOT INCURRED ANY MATERIAL
LIABILITIES OTHER THAN (A) TRADE PAYABLES AND ACCRUED EXPENSES INCURRED IN THE
ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST PRACTICE AND (B) LIABILITIES
NOT REQUIRED TO BE REFLECTED IN THE COMPANY'S FINANCIAL STATEMENTS PURSUANT TO
GAAP OR REQUIRED TO BE DISCLOSED IN FILINGS MADE WITH THE SEC, (III) THE COMPANY
HAS NOT ALTERED ITS METHOD OF ACCOUNTING OR CHANGED ITS AUDITORS, EXCEPT AS
DISCLOSED IN ITS SEC REPORTS, (IV) THE COMPANY HAS NOT DECLARED OR MADE ANY
DIVIDEND OR DISTRIBUTION OF CASH OR OTHER PROPERTY TO ITS STOCKHOLDERS, IN THEIR
CAPACITIES AS SUCH, OR PURCHASED, REDEEMED OR MADE ANY AGREEMENTS TO PURCHASE OR
REDEEM ANY SHARES OF ITS CAPITAL STOCK (EXCEPT FOR REPURCHASES BY THE COMPANY OF
SHARES OF CAPITAL STOCK HELD BY EMPLOYEES, OFFICERS, DIRECTORS, OR CONSULTANTS
PURSUANT TO AN OPTION OF THE COMPANY TO REPURCHASE SUCH SHARES UPON THE
TERMINATION OF EMPLOYMENT OR SERVICES), AND (V) THE COMPANY HAS NOT ISSUED ANY
EQUITY SECURITIES TO ANY OFFICER, DIRECTOR OR AFFILIATE, EXCEPT PURSUANT TO
EXISTING COMPANY STOCK-BASED PLANS.
THE COMPANY HAS NOT TAKEN ANY STEPS TO SEEK
PROTECTION PURSUANT TO ANY BANKRUPTCY LAW NOR DOES THE COMPANY HAVE ANY
KNOWLEDGE OR REASON TO BELIEVE THAT ITS CREDITORS INTEND TO INITIATE INVOLUNTARY
BANKRUPTCY PROCEEDINGS OR ANY ACTUAL KNOWLEDGE OF ANY FACT WHICH WOULD
REASONABLY LEAD A CREDITOR TO DO SO.
THE COMPANY IS NOT AS OF THE DATE HEREOF,
AND AFTER GIVING EFFECT TO THE TRANSACTIONS CONTEMPLATED HEREBY TO OCCUR AT THE
APPLICABLE CLOSING, WILL NOT BE INSOLVENT (AS DEFINED BELOW).
FOR PURPOSES OF
THIS SECTION 3.1(H), "INSOLVENT" MEANS (I) THE PRESENT FAIR SALEABLE VALUE OF
THE COMPANY'S ASSETS IS LESS THAN THE AMOUNT REQUIRED TO PAY THE COMPANY'S TOTAL
INDEBTEDNESS (AS DEFINED IN SECTION 3.1(AA)), (II) THE COMPANY IS UNABLE TO PAY
ITS DEBTS AND LIABILITIES, SUBORDINATED, CONTINGENT OR OTHERWISE, AS SUCH DEBTS
AND LIABILITIES BECOME ABSOLUTE AND MATURED, (III) THE COMPANY INTENDS TO INCUR
OR BELIEVES THAT IT WILL INCUR DEBTS THAT WOULD BE BEYOND ITS ABILITY TO PAY AS
SUCH DEBTS MATURE OR (IV) THE COMPANY HAS UNREASONABLY SMALL CAPITAL WITH WHICH
TO CONDUCT THE BUSINESS IN WHICH IT IS ENGAGED AS SUCH BUSINESS IS NOW CONDUCTED
AND IS PROPOSED TO BE CONDUCTED.
9
(I)
ABSENCE OF LITIGATION.
EXCEPT AS
DISCLOSED IN THE SEC REPORTS, THERE IS