AS THEY MATURE
(TAKING INTO ACCOUNT THE TIMING AND AMOUNTS OF CASH TO BE PAYABLE ON OR IN
RESPECT OF ITS DEBT).
(BB)
FORM S-3 ELIGIBILITY.
THE COMPANY IS ELIGIBLE TO REGISTER THE
RESALE OF ITS COMMON STOCK BY THE PURCHASERS UNDER FORM S-3 PROMULGATED UNDER
THE SECURITIES ACT AND THE COMPANY HEREBY COVENANTS AND AGREES TO USE ITS
COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN ITS ELIGIBILITY TO USE FORM S-3
UNTIL THE REGISTRATION STATEMENT COVERING THE RESALE OF THE SHARES SHALL HAVE
BEEN FILED WITH, AND DECLARED EFFECTIVE BY, THE COMMISSION.
(CC)
TAXES.
EXCEPT FOR MATTERS THAT WOULD NOT, INDIVIDUALLY OR IN THE
AGGREGATE, HAVE OR REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE
EFFECT, THE COMPANY AND EACH SUBSIDIARY HAS FILED ALL NECESSARY FEDERAL, STATE
AND FOREIGN INCOME AND FRANCHISE TAX RETURNS, OR HAS FILED APPROPRIATE
11
EXTENSIONS FOR THE FILING OF SUCH 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.
(DD)
GENERAL SOLICITATION.
NEITHER THE COMPANY NOR ANY PERSON ACTING ON
BEHALF OF THE COMPANY HAS OFFERED OR SOLD ANY OF THE SHARES BY ANY FORM OF
GENERAL SOLICITATION OR GENERAL ADVERTISING.
THE COMPANY HAS OFFERED THE SHARES
FOR SALE ONLY TO THE PURCHASERS AND CERTAIN OTHER "ACCREDITED INVESTORS" WITHIN
THE MEANING OF RULE 501 UNDER THE SECURITIES ACT.
(EE)
FOREIGN CORRUPT PRACTICES.
NEITHER THE COMPANY, NOR TO THE
KNOWLEDGE OF THE COMPANY, ANY AGENT OR OTHER PERSON ACTING ON BEHALF OF THE
COMPANY, HAS (I) DIRECTLY OR INDIRECTLY, USED ANY CORRUPT FUNDS FOR UNLAWFUL
CONTRIBUTIONS, GIFTS, ENTERTAINMENT OR OTHER UNLAWFUL EXPENSES RELATED TO
FOREIGN OR DOMESTIC POLITICAL ACTIVITY, (II) MADE ANY UNLAWFUL PAYMENT TO
FOREIGN OR DOMESTIC GOVERNMENT OFFICIALS OR EMPLOYEES OR TO ANY FOREIGN OR
DOMESTIC POLITICAL PARTIES OR CAMPAIGNS FROM CORPORATE FUNDS, (III) FAILED TO
DISCLOSE FULLY ANY CONTRIBUTION MADE BY THE COMPANY (OR MADE BY ANY PERSON
ACTING ON ITS BEHALF OF WHICH THE COMPANY IS AWARE) WHICH IS IN VIOLATION OF
LAW, OR (IV) VIOLATED IN ANY MATERIAL RESPECT ANY PROVISION OF THE FOREIGN
CORRUPT PRACTICES ACT OF 1977, AS AMENDED.
(FF)
ACCOUNTANTS.
THE COMPANY'S ACCOUNTANTS ARE SET FORTH ON SCHEDULE
3.1(FF) OF THE DISCLOSURE SCHEDULE.
TO THE COMPANY'S KNOWLEDGE, SUCH
ACCOUNTANTS, WHO THE COMPANY EXPECTS WILL EXPRESS THEIR OPINION WITH RESPECT TO
THE FINANCIAL STATEMENTS TO BE INCLUDED IN THE COMPANY'S ANNUAL REPORT ON FORM
10-K FOR THE YEAR ENDING DECEMBER 31, 2004, ARE AN INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM AS REQUIRED BY THE SECURITIES ACT.
(GG)
ACKNOWLEDGMENT REGARDING PURCHASERS' PURCHASE OF SHARES.
THE
COMPANY ACKNOWLEDGES AND AGREES THAT EACH OF THE PURCHASERS IS ACTING SOLELY IN
THE CAPACITY OF AN ARM'S LENGTH PURCHASER WITH RESPECT TO THE TRANSACTION
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY.
THE COMPANY FURTHER
ACKNOWLEDGES THAT NO PURCHASER IS ACTING AS A FINANCIAL ADVISOR OR FIDUCIARY OF
THE COMPANY (OR IN ANY SIMILAR CAPACITY) WITH RESPECT TO THIS AGREEMENT AND