IS SUBJECT OR WHICH IS PENDING OR, TO THE
KNOWLEDGE OF THE COMPANY, THREATENED AGAINST THE COMPANY OR ANY OF ITS
SUBSIDIARIES THAT WOULD, INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE
EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(W)
RELATIONSHIP WITH OFFICERS, DIRECTORS AND SHAREHOLDERS.
NO
RELATIONSHIP, DIRECT OR INDIRECT, EXISTS BETWEEN OR AMONG THE COMPANY, ON THE
ONE HAND, AND THE DIRECTORS, OFFICERS, STOCKHOLDERS, CUSTOMERS OR SUPPLIERS OF
THE COMPANY, ON THE OTHER HAND, THAT IS REQUIRED TO BE DESCRIBED IN THE COMPANY
SEC FILINGS WHICH IS NOT SO DESCRIBED.
(X)
INVESTMENT COMPANY ACT.
NEITHER THE COMPANY NOR ANY SUBSIDIARY
OF THE COMPANY IS, AND AFTER GIVING EFFECT TO THE OFFERING AND SALE OF THE NOTES
AND THE APPLICATION OF THE PROCEEDS THEREOF, NONE OF THEM WILL BE, AN
"INVESTMENT COMPANY" WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT").
(Y)
REGISTRATION RIGHTS.
NO PERSON HAS THE RIGHT TO FILE A
REGISTRATION STATEMENT OR OTHERWISE REQUIRE THE COMPANY TO REGISTER ANY
SECURITIES FOR SALE UNDER THE SECURITIES ACT BY REASON OF THE ISSUANCE AND SALE
OF THE NOTES OR THE ISSUANCE OF THE UNDERLYING SHARES UPON THE CONVERSION OF THE
NOTES.
9
(Z)
BROKERS' FEES.
NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES
IS A PARTY TO ANY CONTRACT, AGREEMENT OR UNDERSTANDING WITH ANY PERSON (OTHER
THAN THIS AGREEMENT) THAT WOULD GIVE RISE TO A VALID CLAIM AGAINST ANY OF THEM
OR FBR FOR A BROKERAGE COMMISSION, FINDER'S FEE OR LIKE PAYMENT IN CONNECTION
WITH THE OFFERING AND SALE OF THE NOTES.
(AA)
ADDITIONAL SECURITIES.
THE COMPANY HAS NOT SOLD OR ISSUED ANY
SECURITIES THAT WOULD BE INTEGRATED WITH THE OFFERING OF THE NOTES CONTEMPLATED
BY THIS AGREEMENT PURSUANT TO THE SECURITIES ACT, THE RULES AND REGULATIONS
THEREUNDER OR THE INTERPRETATIONS THEREOF BY THE SEC.
(BB)
ABSENCE OF MANIPULATION.
NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES NOR, TO THE KNOWLEDGE OF THE COMPANY, ANY OF ITS AFFILIATES HAS
TAKEN, DIRECTLY OR INDIRECTLY, ANY ACTION DESIGNED TO OR THAT HAS CONSTITUTED OR
THAT WOULD REASONABLY BE EXPECTED TO CAUSE OR RESULT IN THE STABILIZATION OR
MANIPULATION OF THE PRICE OF ANY SECURITY OF THE COMPANY IN CONNECTION WITH THE
OFFERING OF THE NOTES.
(CC)
ACTIVELY TRADED.
THE COMMON STOCK IS AN "ACTIVELY-TRADED SECURITY"
EXEMPTED FROM THE REQUIREMENTS OF RULE 101 OF REGULATION M UNDER THE EXCHANGE
ACT BY SUBSECTION (C)(1) OF SUCH RULE.
(DD)
LISTING.
THE COMMON STOCK HAS BEEN APPROVED FOR LISTING, SUBJECT
TO OFFICIAL NOTICE OF ISSUANCE, ON THE NEW YORK STOCK EXCHANGE.
(EE)
POSSESSION OF INTELLECTUAL PROPERTY.
THE COMPANY AND ITS
SIGNIFICANT SUBSIDIARIES OWN OR POSSESS, OR HAVE THE ABILITY TO ACQUIRE, ALL
PATENTS, PATENT RIGHTS, LICENSES, INVENTIONS, COPYRIGHTS, KNOW-HOW (INCLUDING
TRADE SECRETS AND OTHER UNPATENTED AND/OR UNPATENTABLE PROPRIETARY OR
CONFIDENTIAL INFORMATION, SYSTEMS OR PROCEDURES), TRADEMARKS, SERVICE MARKS AND
TRADE NAMES CURRENTLY EMPLOYED BY THEM IN CONNECTION WITH THE BUSINESS NOW
OPERATED BY THEM, EXCEPT WHERE THE FAILURE TO OWN, POSSESS OR HAVE THE ABILITY
TO ACQUIRE