CAPITAL REQUIREMENTS AND
CAPITAL AVAILABILITY THEREOF; AND (III) THE CURRENT CASH FLOW OF THE COMPANY,
TOGETHER WITH THE PROCEEDS THE COMPANY WOULD RECEIVE, WERE IT TO LIQUIDATE ALL
OF ITS ASSETS, AFTER TAKING INTO ACCOUNT ALL ANTICIPATED USES OF THE CASH, WOULD
BE SUFFICIENT TO PAY ALL AMOUNTS ON OR IN RESPECT OF ITS DEBT WHEN SUCH AMOUNTS
ARE REQUIRED TO BE PAID.
THE COMPANY DOES NOT INTEND TO INCUR DEBTS BEYOND ITS
ABILITY TO PAY SUCH DEBTS AS THEY MATURE (TAKING INTO ACCOUNT THE TIMING AND
AMOUNTS OF CASH TO BE PAYABLE ON OR IN RESPECT OF ITS DEBT).
(T)
CERTAIN FEES.
EXCEPT FOR THE FEES
DESCRIBED IN SCHEDULE 3.1(T), ALL OF WHICH ARE PAYABLE BY THE COMPANY TO THE
REGISTERED BROKER-DEALERS NAMED THEREIN, NO BROKERAGE OR FINDER'S FEES OR
COMMISSIONS ARE OR WILL BE PAYABLE BY THE COMPANY TO ANY BROKER, FINANCIAL
ADVISOR OR CONSULTANT, FINDER, PLACEMENT AGENT, INVESTMENT BANKER, BANK OR OTHER
PERSON WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND THE
COMPANY HAS NOT TAKEN ANY ACTION THAT WOULD CAUSE ANY PURCHASER TO BE LIABLE FOR
ANY SUCH FEES OR COMMISSIONS.
THE COMPANY AGREES THAT THE PURCHASERS SHALL HAVE
NO OBLIGATION WITH RESPECT TO ANY FEES OR WITH
9
RESPECT TO ANY CLAIMS MADE BY OR ON BEHALF OF ANY PERSON FOR FEES OF THE TYPE
CONTEMPLATED BY THIS SECTION IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT.
(U)
FORM S-3 ELIGIBILITY; PRIVATE PLACEMENT. THE
COMPANY IS ELIGIBLE TO REGISTER ITS COMMON STOCK FOR RESALE BY THE PURCHASERS
UNDER FORM S-3 PROMULGATED UNDER THE SECURITIES ACT. NEITHER THE COMPANY, NOR
ANY OF ITS AFFILIATES, NOR ANY PERSON ACTING ON ITS OR THEIR BEHALF, HAS ENGAGED
IN ANY FORM OF GENERAL SOLICITATION OR GENERAL ADVERTISING (WITHIN THE MEANING
OF REGULATION D UNDER THE SECURITIES ACT) IN CONNECTION WITH THE OFFER OR SALE
OF THE SECURITIES.
NEITHER THE COMPANY, NOR ANY OF ITS AFFILIATES, NOR ANY
PERSON ACTING ON ITS OR THEIR BEHALF HAS, DIRECTLY OR INDIRECTLY, MADE ANY
OFFERS OR SALES OF ANY SECURITY OR SOLICITED ANY OFFERS TO BUY ANY SECURITY,
UNDER CIRCUMSTANCES THAT WOULD REQUIRE REGISTRATION OF ANY OF THE SECURITIES
UNDER THE SECURITIES ACT OR CAUSE THIS OFFERING OF THE SECURITIES TO BE
INTEGRATED WITH PRIOR OFFERINGS BY THE COMPANY FOR PURPOSES OF THE SECURITIES
ACT OR ANY APPLICABLE STOCKHOLDER APPROVAL PROVISIONS, INCLUDING, WITHOUT
LIMITATION, UNDER THE RULES AND REGULATIONS OF ANY EXCHANGE OR AUTOMATED
QUOTATION SYSTEM ON WHICH ANY OF THE SECURITIES OF THE COMPANY ARE LISTED OR
DESIGNATED, NOR WILL THE COMPANY OR ANY OF ITS SUBSIDIARIES TAKE ANY ACTION OR
STEPS THAT WOULD REQUIRE REGISTRATION OF ANY OF THE SECURITIES UNDER THE
SECURITIES ACT OR CAUSE THE OFFERING OF THE SECURITIES TO BE INTEGRATED WITH
OTHER OFFERINGS.
(V)
LISTING AND MAINTENANCE REQUIREMENTS.
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