OF ITS ASSETS, TANGIBLE
OR INTANGIBLE, (II) WAIVED ANY MATERIAL DEBT OWED TO THE COMPANY, OR
(III) SATISFIED OR DISCHARGED ANY MATERIAL LIEN, CLAIM OR ENCUMBRANCE OR PAID
ANY OBLIGATION OTHER THAN IN THE ORDINARY COURSE OF BUSINESS.
3.10
NASDAQ COMPLIANCE.
THE COMPANY'S COMMON STOCK IS
REGISTERED PURSUANT TO SECTION 12(G) OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED (THE "EXCHANGE ACT"), AND IS LISTED ON THE NASDAQ SMALLCAP MARKET (THE
"NASDAQ STOCK MARKET"), AND THE COMPANY HAS TAKEN NO ACTION DESIGNED TO, OR
WHICH TO ITS KNOWLEDGE IS REASONABLY LIKELY TO HAVE THE EFFECT OF, TERMINATING
THE REGISTRATION OF THE COMMON STOCK UNDER THE EXCHANGE ACT OR DELISTING THE
COMMON STOCK FROM THE NASDAQ STOCK MARKET.
3.11
REPORTING STATUS.
THE COMPANY HAS MADE ALL FILINGS
REQUIRED UNDER THE EXCHANGE ACT ON A TIMELY BASIS DURING THE 12 MONTHS PRECEDING
THE DATE OF THIS AGREEMENT, AND ALL OF THOSE DOCUMENTS COMPLIED IN ALL MATERIAL
RESPECTS WITH THE SEC'S REQUIREMENTS AS OF THEIR RESPECTIVE FILING DATES, AND
THE INFORMATION CONTAINED THEREIN AS OF THE RESPECTIVE DATES THEREOF DID NOT
CONTAIN AN UNTRUE STATEMENT OF A
D-4
MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR
NECESSARY TO MAKE THE STATEMENTS THEREIN IN LIGHT OF THE CIRCUMSTANCES UNDER
WHICH THEY WERE MADE NOT MISLEADING.
3.12
ACCOUNTANTS.
KPMG LLP, WHO EXPRESSED ITS OPINION
WITH RESPECT TO THE CONSOLIDATED FINANCIAL STATEMENTS CONTAINED IN THE COMPANY'S
ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2003, HAS ADVISED THE
COMPANY THAT IT IS, AND TO THE BEST KNOWLEDGE OF THE COMPANY IT IS, AN
INDEPENDENT ACCOUNTANT AS REQUIRED BY THE SECURITIES ACT AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER (THE "RULES AND REGULATIONS").
3.13
CONTRACTS.
EXCEPT FOR MATTERS WHICH ARE NOT
REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT, THE CONTRACTS LISTED AS
EXHIBITS TO THE SEC REPORTS, OTHER THAN THOSE CONTRACTS THAT ARE SUBSTANTIALLY
OR FULLY PERFORMED OR EXPIRED BY THEIR TERMS, ARE IN FULL FORCE AND EFFECT ON
THE DATE HEREOF, AND NONE OF THE COMPANY, ITS SUBSIDIARIES NOR, TO THE COMPANY'S
KNOWLEDGE, ANY OTHER PARTY TO SUCH CONTRACTS, IS IN MATERIAL BREACH OF OR
DEFAULT UNDER ANY OF SUCH CONTRACTS.
3.14
TAXES.
EXCEPT FOR MATTERS WHICH ARE NOT REASONABLY
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, THE COMPANY 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.
3.15
TRANSFER TAXES.
ON THE CLOSING DATE, ALL STOCK
TRANSFER OR OTHER TAXES (OTHER THAN INCOME TAXES) WHICH ARE REQUIRED TO BE PAID
IN CONNECTION WITH THE SALE AND TRANSFER OF THE SHARES HEREUNDER WILL BE, OR
WILL HAVE BEEN, FULLY PAID OR PROVIDED FOR BY THE COMPANY AND THE COMPANY WILL
HAVE COMPLIED WITH ALL LAWS IMPOSING SUCH TAXES.
3.16
INVESTMENT COMPANY.
THE COMPANY IS NOT AN
"INVESTMENT COMPANY" OR