AND
THE RESULTS OF OPERATIONS AND CASH FLOWS FOR THE PERIODS THEN ENDED, SUBJECT, IN
THE CASE OF UNAUDITED STATEMENTS, TO NORMAL, YEAR-END AUDIT ADJUSTMENTS.
ALL
MATERIAL AGREEMENTS TO WHICH THE COMPANY OR 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 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)
SINCE THE DATE OF THE LATEST AUDITED FINANCIAL STATEMENTS INCLUDED WITHIN
THE SEC REPORTS, EXCEPT AS 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 WOULD 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 THE 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(Z)), (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