IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT.
(U)
REGULATION S. ASSUMING THE ACCURACY OF THE PURCHASERS'
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.3, NO REGISTRATION UNDER
THE SECURITIES ACT IS REQUIRED FOR THE OFFER AND SALE OF THE SECURITIES BY THE
COMPANY TO THE PURCHASERS AS CONTEMPLATED HEREBY. NEITHER THE COMPANY NOR ANY OF
ITS AFFILIATES NOR ANY PERSON ACTING ON ITS BEHALF HAS ENGAGED IN ANY "DIRECTED
SELLING EFFORTS," AS THAT TERM IS DEFINED IN RULE 902 OF REGULATION S OF THE
17
SECURITIES ACT, IN CONNECTION WITH THE OFFERING OF THE SECURITIES. THE COMPANY
HAS OFFERED THE SECURITIES FOR SALE ONLY TO THE PURCHASERS, ALL OF WHOM ARE NOT
"U.S. PERSONS," WITHIN THE MEANING OF RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT.
(V)
INVESTMENT COMPANY. THE COMPANY IS NOT, AND IS NOT AN AFFILIATE
OF, AND IMMEDIATELY AFTER RECEIPT OF PAYMENT FOR THE SHARES, WILL NOT BE OR BE
AN AFFILIATE OF, AN "INVESTMENT COMPANY" WITHIN THE MEANING OF THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED.
THE COMPANY SHALL CONDUCT ITS BUSINESS IN A
MANNER SO THAT IT WILL NOT BECOME SUBJECT TO THE INVESTMENT COMPANY ACT.
(W)
LISTING AND MAINTENANCE REQUIREMENTS.
THE COMPANY'S COMMON STOCK
IS REGISTERED PURSUANT TO SECTION 12(B) OF THE EXCHANGE ACT, AND THE COMPANY HAS
TAKEN NO ACTION DESIGNED TO, OR WHICH TO ITS KNOWLEDGE IS LIKELY TO HAVE THE
EFFECT OF, TERMINATING THE REGISTRATION OF THE COMMON STOCK UNDER THE EXCHANGE
ACT NOR HAS THE COMPANY RECEIVED ANY NOTIFICATION THAT THE COMMISSION IS
CONTEMPLATING 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.
(X)
FORM S-3 ELIGIBILITY.
ASSUMING THE ACCURACY OF THE PURCHASERS'
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.3 UPON THE FULL EXERCISE
OF THE PUT, THE FULL EXERCISE OF THE CALL OR THE AUTOMATIC EXCHANGE DATE, THE
COMPANY IS ELIGIBLE TO REGISTER THE RESALE OF THE EXCHANGE SHARES AND EXCHANGE
WARRANT SHARES BY THE PURCHASERS UNDER FORM S-3 PROMULGATED UNDER THE SECURITIES
ACT AND THE COMPANY HEREBY COVENANTS AND AGREES TO USE REASONABLE BEST EFFORTS
TO MAINTAIN ITS ELIGIBILITY TO USE FORM S-3 UNTIL THE REGISTRATION STATEMENT
COVERING THE RESALE OF THE EXCHANGE SHARES AND EXCHANGE WARRANT SHARES SHALL
HAVE BEEN FILED WITH, AND DECLARED EFFECTIVE BY, THE COMMISSION.
(Y)
TAXES.
EXCEPT FOR MATTERS THAT WOULD NOT, INDIVIDUALLY OR IN THE
AGGREGATE, WOULD RESULT IN A MATERIAL ADVERSE EFFECT, THE COMPANY AND EACH
SUBSIDIARY HAS FILED ALL NECESSARY FEDERAL, STATE AND FOREIGN INCOME AND
FRANCHISE TAX RETURNS AND HAS PAID OR ACCRUED ALL TAXES SHOWN AS DUE THEREON,
AND THE COMPANY HAS NO KNOWLEDGE OF A TAX DEFICIENCY WHICH HAS BEEN ASSERTED OR
THREATENED AGAINST THE COMPANY OR ANY SUBSIDIARY.
(Z)
FOREIGN CORRUPT PRACTICES.
NEITHER THE COMPANY, NOR