OR ON SCHEDULE 4.21 TO THE MAY SECURITIES
PURCHASE AGREEMENT, THE COMPANY HAS TIMELY FILED ALL PROXY STATEMENTS, REPORTS,
SCHEDULES, FORMS, STATEMENTS AND OTHER DOCUMENTS REQUIRED TO BE FILED BY IT
UNDER THE EXCHANGE ACT. THE COMPANY HAS FILED (I) ITS ANNUAL REPORT ON FORM 10-K
FOR ITS FISCAL YEAR ENDED DECEMBER 31, 2004 AND (II) ITS QUARTERLY REPORT ON
FORM 10-QFOR THE FISCAL QUARTERS ENDED MARCH 31, 2005, JUNE 30, 2005 AND
SEPTEMBER 30, 2005 (COLLECTIVELY, THE "SEC REPORTS"). EACH SEC REPORT WAS, AT
THE TIME OF ITS FILING, IN SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENTS OF ITS
RESPECTIVE FORM AND NONE OF THE SEC REPORTS, NOR THE FINANCIAL STATEMENTS (AND
THE NOTES THERETO) INCLUDED IN THE SEC REPORTS, AS OF THEIR RESPECTIVE FILING
DATES, CONTAINED ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITTED 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. THE FINANCIAL STATEMENTS OF THE COMPANY INCLUDED IN THE SEC REPORTS
COMPLY AS TO FORM IN ALL MATERIAL RESPECTS WITH APPLICABLE ACCOUNTING
7
REQUIREMENTS AND THE PUBLISHED RULES AND REGULATIONS OF THE COMMISSION OR OTHER
APPLICABLE RULES AND REGULATIONS WITH RESPECT THERETO. SUCH FINANCIAL STATEMENTS
HAVE BEEN PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
("GAAP") APPLIED ON A CONSISTENT BASIS 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 NOT INCLUDE FOOTNOTES OR MAY BE CONDENSED) AND FAIRLY PRESENT IN ALL
MATERIAL RESPECTS THE FINANCIAL CONDITION, THE RESULTS OF OPERATIONS AND THE
CASH FLOWS OF THE COMPANY AND ITS SUBSIDIARIES, ON A CONSOLIDATED BASIS, AS OF,
AND FOR, THE PERIODS PRESENTED IN EACH SUCH SEC REPORT.
(B)
THE COMMON STOCK IS QUOTED FOR TRADING ON THE NASDAQ OVER THE
COUNTER BULLETIN BOARD AND SATISFIES ALL REQUIREMENTS FOR THE CONTINUATION OF
SUCH QUOTATION, AND THE COMPANY SHALL DO ALL THINGS NECESSARY FOR THE
CONTINUATION OF SUCH QUOTATION. THE COMPANY HAS NOT RECEIVED ANY NOTICE THAT ITS
COMMON STOCK WILL NO LONGER BE QUOTED ON THE NASDAQ OVER THE COUNTER BULLETIN
BOARD (EXCEPT FOR PRIOR NOTICES WHICH HAVE BEEN FULLY REMEDIED) OR THAT THE
COMMON STOCK DOES NOT MEET ALL REQUIREMENTS FOR THE CONTINUATION OF SUCH
LISTING.
(C)
EXCEPT FOR SECURITIES SOLD TO THE PURCHASER ON AUGUST 25, 2005,
NEITHER THE COMPANY, NOR ANY OF ITS AFFILIATES, NOR ANY PERSON ACTING ON ITS OR
THEIR BEHALF, HAS DIRECTLY OR INDIRECTLY MADE ANY OFFERS OR SALES OF ANY
SECURITY OR SOLICITED ANY OFFERS TO BUY ANY SECURITY UNDER CIRCUMSTANCES THAT
WOULD CAUSE THE OFFERING OF THE SECURITIES PURSUANT TO THE FEBRUARY SECURITIES
PURCHASE AGREEMENT OR PURSUANT TO THE MAY SECURITIES PURCHASE AGREEMENT TO BE
INTEGRATED WITH PRIOR OFFERINGS BY THE COMPANY FOR PURPOSES OF THE SECURITIES
ACT WHICH WOULD PREVENT THE COMPANY FROM SELLING THE COMMON STOCK PURSUANT TO
RULE 506 UNDER THE