INCLUDING WITHOUT LIMITATION ALL RULES REGARDING THE DUTY OF
CANDOR, AND, TO THE COMPANY'S KNOWLEDGE, NO CLAIM OF ANY PATENT OR PATENT
APPLICATION (ASSUMING THE CLAIMS OF PATENT APPLICATIONS ISSUE AS CURRENTLY
PENDING) INCLUDED IN THE COMPANY INTELLECTUAL PROPERTY IS UNENFORCEABLE OR
INVALID, EXCEPT FOR SUCH UNENFORCEABILITY OR INVALIDITY THAT WOULD NOT
REASONABLY BE EXPECTED TO RESULT, INDIVIDUALLY OR IN THE AGGREGATE, IN A
MATERIAL ADVERSE EFFECT.
THE COMPANY IS NOT OBLIGATED TO PAY A ROYALTY, GRANT A
LICENSE OR PROVIDE OTHER CONSIDERATION TO ANY THIRD PARTY IN CONNECTION WITH THE
COMPANY INTELLECTUAL PROPERTY OTHER THAN AS DISCLOSED IN THE SEC DOCUMENTS.
THERE IS NO PENDING, NOR TO THE KNOWLEDGE OF THE COMPANY, THREATENED ACTION,
SUIT, PROCEEDING, OR OTHER CLAIM THAT THE COMPANY INFRINGES, MISAPPROPRIATES, OR
OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD
PARTY.
3.9
FINANCIAL STATEMENTS.
THE FINANCIAL
STATEMENTS OF THE COMPANY CONTAINED IN THE SEC REPORTS HAVE BEEN PREPARED IN
ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES IN THE UNITED STATES
("GAAP")
APPLIED ON A CONSISTENT BASIS AT THE TIMES AND THROUGHOUT THE PERIODS
THEREIN SPECIFIED, EXCEPT AS MAY BE OTHERWISE SPECIFIED IN SUCH FINANCIAL
STATEMENTS OR THE NOTES THERETO AND THAT UNAUDITED FINANCIAL STATEMENTS MAY NOT
CONTAIN ALL FOOTNOTES REQUIRED BY GAAP.
SUCH FINANCIAL STATEMENTS PRESENT
FAIRLY AND ACCURATELY IN ALL MATERIAL RESPECTS THE FINANCIAL POSITION OF THE
COMPANY AS OF THE DATES INDICATED, AND THE RESULTS
6
OF ITS OPERATIONS, CASH FLOWS AND THE CHANGES IN STOCKHOLDERS' EQUITY FOR THE
PERIODS THEREIN SPECIFIED, SUBJECT, IN THE CASE OF UNAUDITED FINANCIAL
STATEMENTS FOR INTERIM PERIODS, TO NORMAL YEAR-END AUDIT ADJUSTMENTS.
THERE ARE
NO FINANCIAL STATEMENTS (HISTORICAL OR PRO FORMA) AND/OR RELATED SCHEDULES AND
NOTES THAT ARE REQUIRED TO BE INCLUDED IN THE SEC DOCUMENTS THAT ARE NOT
INCLUDED AS REQUIRED BY THE SECURITIES ACT, THE EXCHANGE ACT AND/OR THE
RULES AND REGULATIONS, EXCEPT WHERE A FAILURE TO SO INCLUDE WOULD NOT REASONABLY
BE EXPECTED TO HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL ADVERSE
EFFECT.
3.10
NO MATERIAL ADVERSE CHANGE.
EXCEPT AS DISCLOSED IN
THE SEC REPORTS OR IN ANY PRESS RELEASES ISSUED BY THE COMPANY AT LEAST TWO
(2) BUSINESS DAYS PRIOR TO THE DATE OF THIS AGREEMENT, SINCE JUNE 30, 2009,
THERE HAS NOT BEEN (I) ANY EVENT, CIRCUMSTANCE OR CHANGE THAT HAS HAD OR THAT
WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, (II) ANY
OBLIGATION INCURRED BY THE COMPANY, DIRECT OR CONTINGENT, THAT IS MATERIAL TO
THE COMPANY OTHER THAN (A) TRADE PAYABLES, ACCRUED EXPENSES AND OTHER
LIABILITIES 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 SEC, (III) ANY DIVIDEND OR DISTRIBUTION OF ANY KIND DECLARED, PAID
OR MADE ON THE CAPITAL STOCK OF THE COMPANY, (IV) ANY LOSS OR DAMAGE (WHETHER OR
NOT INSURED) TO THE PHYSICAL PROPERTY OF THE COMPANY WHICH HAS HAD, OR WOULD
REASONABLY