OCCURRING OR EXPECTED TO OCCUR ON OR PRIOR TO THE CLOSING DATE (OTHER THAN THE
TRANSACTIONS EFFECTED HEREBY) THAT WOULD REQUIRE THE FILING OF, OR WITH RESPECT
TO WHICH THE COMPANY INTENDS TO FILE, A FORM 8-K WITHIN FIVE (5) BUSINESS DAYS
AFTER THE CLOSING.
EACH SEC DOCUMENT, AS OF THE DATE OF THE FILING THEREOF WITH
THE COMMISSION (OR IF AMENDED OR SUPERSEDED BY A FILING PRIOR TO THE EXECUTION
DATE, THEN ON THE DATE OF SUCH AMENDING OR SUPERSEDING FILING), COMPLIED IN ALL
MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE SECURITIES ACT OR EXCHANGE ACT,
AS APPLICABLE, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER AND, AS OF
THE DATE OF SUCH FILING (OR IF AMENDED OR SUPERSEDED BY A FILING PRIOR TO THE
EXECUTION DATE, THEN ON THE DATE OF SUCH FILING), SUCH SEC DOCUMENT (INCLUDING
ALL EXHIBITS AND SCHEDULES THERETO AND DOCUMENTS INCORPORATED BY REFERENCE
THEREIN) DID NOT CONTAIN AN UNTRUE STATEMENT OF 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.
ALL DOCUMENTS REQUIRED TO BE FILED AS EXHIBITS TO THE SEC DOCUMENTS
HAVE BEEN FILED AS REQUIRED.
EXCEPT AS SET FORTH IN THE DISCLOSURE DOCUMENTS,
THE COMPANY HAS NO LIABILITIES, CONTINGENT OR OTHERWISE, OTHER THAN LIABILITIES
INCURRED IN THE ORDINARY COURSE OF BUSINESS WHICH, UNDER GAAP, ARE NOT REQUIRED
TO BE REFLECTED IN THE FINANCIAL STATEMENTS INCLUDED IN THE DISCLOSURE DOCUMENTS
AND WHICH, INDIVIDUALLY OR IN THE AGGREGATE, ARE NOT MATERIAL TO THE
CONSOLIDATED BUSINESS OR FINANCIAL CONDITION OF THE COMPANY AND ITS SUBSIDIARIES
TAKEN AS A WHOLE.
AS OF THEIR RESPECTIVE DATES, THE FINANCIAL STATEMENTS OF THE
COMPANY INCLUDED IN THE SEC DOCUMENTS COMPLIED AS TO FORM IN ALL MATERIAL
RESPECTS WITH APPLICABLE ACCOUNTING REQUIREMENTS AND THE PUBLISHED RULES AND
REGULATIONS OF THE COMMISSION WITH RESPECT THERETO. SUCH FINANCIAL STATEMENTS
HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP CONSISTENTLY APPLIED AT THE TIMES AND
DURING THE PERIODS INVOLVED (EXCEPT (I) AS MAY BE OTHERWISE INDICATED IN SUCH
FINANCIAL STATEMENTS OR THE NOTES THERETO, OR (II) IN THE CASE OF UNAUDITED
INTERIM STATEMENTS, TO THE EXTENT THEY MAY EXCLUDE FOOTNOTES OR MAY BE CONDENSED
OR SUMMARY STATEMENTS) AND FAIRLY PRESENT IN ALL MATERIAL RESPECTS THE FINANCIAL
POSITION OF THE COMPANY AS OF THE DATES THEREOF AND THE RESULTS OF ITS
OPERATIONS AND CASH FLOWS FOR THE PERIODS THEN ENDED (SUBJECT, IN THE CASE OF
UNAUDITED STATEMENTS, TO NORMAL YEAR-END ADJUSTMENTS).
3.5
CAPITALIZATION.
THE CAPITALIZATION OF THE
COMPANY, INCLUDING ITS AUTHORIZED CAPITAL STOCK, THE NUMBER OF SHARES ISSUED AND
OUTSTANDING, THE NUMBER OF SHARES ISSUABLE AND RESERVED FOR ISSUANCE PURSUANT TO
THE COMPANY'S STOCK OPTION PLANS AND AGREEMENTS, THE NUMBER OF SHARES ISSUABLE
AND RESERVED FOR ISSUANCE PURSUANT TO SECURITIES (OTHER THAN THE WARRANTS)
EXERCISABLE FOR, OR CONVERTIBLE INTO OR EXCHANGEABLE FOR ANY SHARES OF COMMON
STOCK AND THE NUMBER OF SHARES INITIALLY TO BE RESERVED FOR ISSUANCE UPON
EXERCISE OF THE WARRANTS,