THE PROPERTY OR ASSETS OF THE COMPANY OR ANY
SUBSIDIARY ARE SUBJECT THAT ARE REQUIRED TO BE FILED WITH THE COMMISSION ARE
INCLUDED AS PART OF OR SPECIFICALLY IDENTIFIED IN THE SEC REPORTS.
EACH PRESS
RELEASE DISSEMINATED DURING THE 12 MONTHS PRECEDING THE DATE OF THIS AGREEMENT
DID NOT AT THE TIME OF RELEASE CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT
OR OMIT TO STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY IN
ORDER TO MAKE THE STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH
THEY ARE MADE, NOT MISLEADING.
(I)
MATERIAL CHANGES.
EXCEPT AS SET FORTH
IN SCHEDULE 3.1(I), SINCE THE DATE OF THE LATEST AUDITED FINANCIAL STATEMENTS
INCLUDED WITHIN THE SEC REPORTS, EXCEPT AS SPECIFICALLY DISCLOSED IN THE SEC
REPORTS, (I) THERE HAS BEEN NO EVENT, OCCURRENCE OR DEVELOPMENT THAT,
INDIVIDUALLY OR IN THE AGGREGATE, HAS HAD OR THAT REASONABLY COULD BE EXPECTED
TO RESULT IN A MATERIAL ADVERSE EFFECT, (II) THE COMPANY HAS NOT INCURRED ANY
LIABILITIES (CONTINGENT OR OTHERWISE) 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 COMMISSION, (III) THE COMPANY HAS NOT ALTERED ITS METHOD OF
ACCOUNTING OR THE IDENTITY OF ITS AUDITORS, (IV) THE COMPANY HAS NOT DECLARED OR
MADE ANY DIVIDEND OR DISTRIBUTION OF CASH OR OTHER PROPERTY TO ITS STOCKHOLDERS
OR PURCHASED, REDEEMED OR MADE ANY AGREEMENTS TO PURCHASE OR REDEEM ANY SHARES
OF ITS CAPITAL STOCK, AND (V) THE COMPANY HAS NOT ISSUED ANY EQUITY SECURITIES
TO ANY OFFICER, DIRECTOR OR AFFILIATE, EXCEPT PURSUANT TO EXISTING COMPANY
EQUITY COMPENSATION OPTION PLANS.
(J)
LITIGATION.
THERE IS NO ACTION, SUIT,
INQUIRY, NOTICE OF VIOLATION, PROCEEDING OR INVESTIGATION PENDING OR, TO THE
KNOWLEDGE OF THE COMPANY, THREATENED AGAINST OR AFFECTING THE COMPANY, ANY
SUBSIDIARY OR ANY OF THEIR RESPECTIVE PROPERTIES BEFORE OR BY ANY COURT,
ARBITRATOR, GOVERNMENTAL OR ADMINISTRATIVE AGENCY OR REGULATORY AUTHORITY
(FEDERAL, STATE, COUNTY, LOCAL OR FOREIGN) (COLLECTIVELY, AN "ACTION") WHICH (I)
ADVERSELY AFFECTS OR CHALLENGES THE LEGALITY, VALIDITY OR ENFORCEABILITY OF ANY
OF THE TRANSACTION DOCUMENTS OR THE SECURITIES OR (II) COULD, IF THERE WERE AN
UNFAVORABLE DECISION, INDIVIDUALLY OR IN THE AGGREGATE, HAVE OR RESULT IN A
MATERIAL ADVERSE EFFECT.
TO THE KNOWLEDGE OF THE COMPANY, SCHEDULE 3.1(J) OF
THE DISCLOSURE SCHEDULE CONTAINS A COMPLETE LIST AND SUMMARY DESCRIPTION OF ANY
PENDING OR THREATENED PROCEEDING
13
AGAINST OR AFFECTING THE COMPANY OR ANY OF ITS SUBSIDIARIES, WITHOUT REGARD TO
WHETHER IT WOULD HAVE A MATERIAL ADVERSE EFFECT.
NEITHER THE COMPANY NOR ANY
SUBSIDIARY, NOR TO THE KNOWLEDGE OF THE COMPANY ANY DIRECTOR OR OFFICER THEREOF,
IS OR DURING THE LAST THREE YEARS HAS BEEN THE SUBJECT OF ANY ACTION INVOLVING A
CLAIM OF VIOLATION OF OR LIABILITY UNDER FEDERAL OR STATE SECURITIES LAWS OR A
CLAIM OF BREACH OF FIDUCIARY DUTY. THERE HAS NOT BEEN, AND TO