TERMINATING SUCH
REGISTRATION.
THE COMPANY HAS NOT, IN THE 12 MONTHS PRECEDING THE DATE HEREOF,
RECEIVED NOTICE FROM ANY TRADING MARKET ON WHICH THE COMMON STOCK IS OR HAS BEEN
LISTED OR QUOTED TO THE EFFECT THAT THE COMPANY IS NOT IN COMPLIANCE WITH THE
LISTING OR MAINTENANCE REQUIREMENTS OF SUCH TRADING MARKET. THE COMPANY IS IN
COMPLIANCE WITH ALL SUCH LISTING AND MAINTENANCE REQUIREMENTS.
(U)
APPLICATION OF TAKEOVER PROTECTIONS.
THE
COMPANY AND ITS BOARD OF DIRECTORS HAVE TAKEN ALL NECESSARY ACTION, IF ANY, IN
ORDER TO RENDER INAPPLICABLE ANY CONTROL SHARE ACQUISITION, BUSINESS
COMBINATION, POISON PILL (INCLUDING ANY DISTRIBUTION UNDER A RIGHTS AGREEMENT)
OR OTHER SIMILAR ANTI-TAKEOVER PROVISION UNDER THE COMPANY'S CERTIFICATE OF
INCORPORATION (OR SIMILAR CHARTER DOCUMENTS) OR THE LAWS OF ITS STATE OF
INCORPORATION THAT IS OR COULD BECOME APPLICABLE TO THE PURCHASERS AS A RESULT
OF THE PURCHASERS 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 PURCHASERS' OWNERSHIP OF THE
SECURITIES.
(V)
DISCLOSURE.
THE COMPANY CONFIRMS THAT,
NEITHER THE COMPANY NOR ANY OFFICER, DIRECTOR OR EMPLOYEE OF THE COMPANY ACTING
ON ITS BEHALF HAS PROVIDED ANY OF THE PURCHASERS OR THEIR AGENTS OR COUNSEL WITH
ANY INFORMATION THAT CONSTITUTES OR MIGHT CONSTITUTE MATERIAL, NON-PUBLIC
INFORMATION.
THE COMPANY UNDERSTANDS AND CONFIRMS THAT THE PURCHASERS WILL
RELY ON THE FOREGOING REPRESENTATIONS AND COVENANTS IN EFFECTING TRANSACTIONS IN
SECURITIES OF THE COMPANY.
ALL DISCLOSURE PROVIDED TO THE PURCHASERS REGARDING
THE COMPANY, ITS BUSINESS AND THE TRANSACTIONS CONTEMPLATED HEREBY FURNISHED BY
OR ON BEHALF OF THE COMPANY WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES
MADE HEREIN ARE TRUE AND CORRECT WITH RESPECT TO SUCH REPRESENTATIONS AND
WARRANTIES AND DO NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO
STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE THEREIN,
IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. THE
COMPANY ACKNOWLEDGES AND AGREES THAT NO PURCHASER MAKES OR HAS MADE ANY
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
HEREBY OTHER THAN THOSE SPECIFICALLY SET FORTH IN SECTION 3.2 HEREOF.
(W)
NO INTEGRATED OFFERING. ASSUMING THE ACCURACY
OF THE PURCHASERS' REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.2,
NEITHER THE COMPANY, NOR ANY OF ITS AFFILIATES, NOR ANY PERSON ACTING ON ITS OR
THEIR BEHALF HAS, DIRECTLY OR INDIRECTLY, MADE ANY OFFERS OR SALES OF ANY
SECURITY OR SOLICITED ANY OFFERS TO BUY ANY SECURITY, UNDER CIRCUMSTANCES THAT
WOULD, TO THE BEST OF THE COMPANY'S KNOWLEDGE, CAUSE THIS OFFERING OF
12
THE SECURITIES, WHEN, AND IF, INTEGRATED WITH PRIOR OFFERINGS BY THE COMPANY, TO
REQUIRE SHAREHOLDER APPROVAL, INCLUDING, WITHOUT LIMITATION, UNDER THE RULES AND
REGULATIONS OF ANY EXCHANGE OR AUTOMATED QUOTATION SYSTEM ON WHICH ANY OF THE
SECURITIES OF THE COMPANY ARE LISTED OR DESIGNATED.
(X)
SOLVENCY.
BASED ON THE FINANCIAL
CONDITION OF THE COMPANY AS OF THE CLOSING DATE AFTER GIVING EFFECT TO THE
RECEIPT BY THE COMPANY OF THE PROCEEDS FROM