THE NASDAQ AND WITH
ANY STATE OR FOREIGN BLUE SKY OR SECURITIES REGULATORY AUTHORITY.
(5)
ACCURACY OF SEC REPORTS.
ALL REPORTS REQUIRED TO BE FILED BY THE
COMPANY UNDER THE EXCHANGE ACT WITHIN THE TWO YEARS PRIOR TO THE DATE OF THIS
AGREEMENT HAVE BEEN DULY AND TIMELY FILED WITH THE COMMISSION, COMPLIED AT THE
TIME OF FILING IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THEIR
RESPECTIVE FORMS AND, EXCEPT TO THE EXTENT UPDATED OR SUPERSEDED BY ANY
SUBSEQUENTLY FILED REPORT WERE COMPLETE AND CORRECT IN ALL MATERIAL RESPECTS AS
OF THE DATES AT WHICH THE INFORMATION WAS FURNISHED, AND CONTAINED (AS OF SUCH
DATES) NO UNTRUE STATEMENTS OF A MATERIAL FACT NOR OMITTED TO STATE ANY MATERIAL
FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS CONTAINED THEREIN, IN LIGHT OF
THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
(6)
FINANCIAL INFORMATION.
THE COMPANY'S FINANCIAL STATEMENTS THAT
APPEAR IN THE SEC REPORTS HAVE BEEN PREPARED IN ACCORDANCE WITH ACCOUNTING
PRINCIPLES GENERALLY ACCEPTED IN THE UNITED STATES (EXCEPT THAT THE FINANCIAL
STATEMENTS THAT ARE NOT AUDITED DO NOT HAVE NOTES THERETO) APPLIED ON A
CONSISTENT BASIS THROUGHOUT THE PERIODS INDICATED AND SUCH FINANCIAL STATEMENTS
FAIRLY PRESENT IN ALL MATERIAL RESPECTS THE FINANCIAL CONDITION AND RESULTS OF
OPERATIONS OF THE COMPANY AS OF THE DATES AND FOR THE PERIODS INDICATED THEREIN.
5
(7)
INDEBTEDNESS.
THE SEC REPORTS SET FORTH, TO THE EXTENT REQUIRED,
AS OF THE DATE THEREOF ALL OUTSTANDING SECURED AND UNSECURED MATERIAL
INDEBTEDNESS OF THE COMPANY OR ANY SUBSIDIARY THEREOF, INCLUDING ALL GUARANTIES,
ENDORSEMENTS AND OTHER CONTINGENT OBLIGATIONS IN RESPECT OF INDEBTEDNESS OF
OTHERS.
(8)
ABSENCE OF CERTAIN CHANGES.
EXCEPT AS SET FORTH IN THE DISCLOSURE
SCHEDULE ATTACHED HERETO, SINCE JUNE 30, 2003, THERE HAS NOT OCCURRED ANY EVENT
THAT HAS CAUSED A MATERIAL ADVERSE EFFECT OR ANY OCCURRENCE, CIRCUMSTANCE OR
COMBINATION THEREOF THAT REASONABLY WOULD BE LIKELY TO RESULT IN SUCH MATERIAL
ADVERSE EFFECT.
(9)
CERTAIN FEES.
OTHER THAN COMMISSION PAYABLE TO THE PLACEMENT AGENT
PURSUANT TO THE PLACEMENT AGENT AGREEMENT, NO BROKERS', FINDERS' OR FINANCIAL
ADVISORY FEES OR COMMISSIONS WILL BE PAYABLE BY THE COMPANY OR ANY SUBSIDIARY
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
D.
REGISTRATION OF THE SHARES; COMPLIANCE
WITH THE SECURITIES ACT.
(1)
REGISTRATION PROCEDURES AND EXPENSES. THE COMPANY SHALL:
(A)
AS SOON AS PRACTICABLE, PREPARE AND FILE WITH THE COMMISSION A
REGISTRATION STATEMENT ON FORM S-3 RELATING TO THE SALE OF THE SHARES BY THE
PURCHASERS FROM TIME TO TIME (INCLUDING SALES ON THE NASDAQ NATIONAL MARKET OR
THE FACILITIES OF ANY NATIONAL SECURITIES EXCHANGE ON WHICH THE COMPANY'S COMMON
STOCK IS THEN TRADED OR IN PRIVATELY-NEGOTIATED TRANSACTIONS);
(B)
USE ITS REASONABLE EFFORTS, SUBJECT TO RECEIPT OF NECESSARY
INFORMATION FROM THE PURCHASERS, TO CAUSE THE REGISTRATION STATEMENT TO BE
DECLARED EFFECTIVE UNDER THE SECURITIES ACT WITHIN 120 DAYS FROM THE DATE OF
THIS AGREEMENT;
(C)
PREPARE AND FILE WITH THE COMMISSION SUCH AMENDMENTS AND
SUPPLEMENTS TO THE REGISTRATION STATEMENT AND THE PROSPECTUS USED IN CONNECTION
THEREWITH AS MAY BE