ENTITLED TO ANY BROKER'S
OR FINDER'S FEE OR ANY OTHER COMMISSION OR SIMILAR FEE FROM THE COMPANY,
DIRECTLY OR INDIRECTLY, IN CONNECTION WITH THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 3.13.
NO GENERAL SOLICITATION.
NONE OF THE COMPANY OR ANY OF ITS
"AFFILIATES" (AS DEFINED IN RULE 501(B) OF REGULATION D UNDER THE SECURITIES ACT
("REGULATION D")), HAS, DIRECTLY OR THROUGH AN AGENT, ENGAGED IN ANY FORM OF
GENERAL SOLICITATION OR GENERAL ADVERTISING IN CONNECTION WITH THE OFFERING OF
THE SHARES (AS THOSE TERMS ARE USED IN REGULATION D) UNDER THE SECURITIES ACT OR
IN ANY MANNER INVOLVING A PUBLIC OFFERING WITHIN THE MEANING OF SECTION 4(2) OF
THE SECURITIES ACT; AND THE COMPANY HAS NOT ENTERED INTO ANY CONTRACTUAL
ARRANGEMENT WITH RESPECT TO THE DISTRIBUTION OF THE SHARES EXCEPT FOR THIS
AGREEMENT, AND THE COMPANY WILL NOT ENTER INTO ANY SUCH ARRANGEMENT.
8
SECTION 3.14.
NO DEFAULT.
THE COMPANY IS NOT IN DEFAULT IN THE PAYMENT OR
PERFORMANCE OF ANY OF ITS CONTRACTS, EXCEPT WHERE SUCH DEFAULT WOULD NOT HAVE A
MATERIAL ADVERSE EFFECT.
SECTION 3.15.
REGISTRATION OF SHARES.
THE COMPANY HAS NOT ENTERED INTO ANY
AGREEMENT TO REGISTER ITS DEBT OR EQUITY SECURITIES UNDER THE SECURITIES ACT.
SECTION 3.16.
DISCLOSURE CONTROLS.
THE COMPANY HAS ESTABLISHED DISCLOSURE
CONTROLS AND PROCEDURES (AS DEFINED IN EXCHANGE ACT RULES 13A-14 AND 15D-14) FOR
THE COMPANY AND DESIGNED SUCH DISCLOSURE CONTROLS AND PROCEDURES TO ENSURE THAT
MATERIAL INFORMATION RELATING TO THE COMPANY, INCLUDING ITS SUBSIDIARIES, IS
TIMELY MADE KNOWN TO THE CERTIFYING OFFICERS BY OTHERS WITHIN THOSE ENTITIES,
PARTICULARLY DURING THE PERIOD IN WHICH THE COMPANY'S FORM 10-K OR 10-Q, AS THE
CASE MAY BE, IS BEING PREPARED.
THE COMPANY'S CERTIFYING OFFICERS HAVE
EVALUATED THE EFFECTIVENESS OF THE COMPANY'S CONTROLS AND PROCEDURES AS OF
SEPTEMBER 30, 2004 (SUCH DATE, THE "EVALUATION DATE").
THE COMPANY PRESENTED IN
ITS FORM 10-Q FOR THE QUARTER ENDED SEPTEMBER 30, 2004 THE CONCLUSIONS OF THE
CERTIFYING OFFICERS ABOUT THE EFFECTIVENESS OF THE DISCLOSURE CONTROLS AND
PROCEDURES BASED ON THEIR EVALUATIONS AS OF THE EVALUATION DATE.
SINCE THE
EVALUATION DATE, THERE HAVE BEEN NO SIGNIFICANT CHANGES IN THE COMPANY'S
INTERNAL CONTROLS (AS SUCH TERM IS DEFINED IN ITEM 307(B) OF REGULATION S-K
UNDER THE EXCHANGE ACT) OR, TO THE KNOWLEDGE OF THE COMPANY, IN ANY FACTORS THAT
COULD SIGNIFICANTLY AFFECT THE COMPANY'S INTERNAL CONTROLS.
SECTION 3.17
PRIVATE PLACEMENT.
ASSUMING THE ACCURACY OF THE REPRESENTATIONS
AND WARRANTIES OF THE INVESTOR CONTAINED IN ARTICLE IV AND ITS COMPLIANCE WITH
THE AGREEMENTS SET FORTH THEREIN, NO REGISTRATION UNDER THE SECURITIES ACT IS
REQUIRED FOR THE OFFER AND SALE OF THE SHARES BY THE COMPANY TO THE INVESTOR AS
CONTEMPLATED HEREBY.
SECTION 3.18
TAXES.
THERE HAVE BEEN PROPERLY COMPLETED AND FILED ON A TIMELY
BASIS ALL MATERIAL TAX RETURNS REQUIRED TO BE FILED BY THE COMPANY OR ANY
COMPANY SUBSIDIARY ON OR PRIOR TO THE DATE HEREOF.
ALL SUCH TAX RETURNS ARE
TRUE, CORRECT AND COMPLETE IN ALL MATERIAL RESPECTS.
ALL TAXES OF THE COMPANY
OR ANY COMPANY SUBSIDIARY DUE AND PAYABLE HAVE BEEN