PROSPECTUS OR ANY SUCH AMENDMENT OR SUPPLEMENT, IN RELIANCE UPON, AND IN
CONFORMITY WITH, WRITTEN INFORMATION FURNISHED TO THE COMPANY BY OR ON BEHALF OF
THE INVESTOR SPECIFICALLY FOR USE IN THE PREPARATION THEREOF.
THE COMPANY HAS
NOT DISTRIBUTED ANY OFFERING MATERIAL IN CONNECTION WITH THE OFFERING AND SALE
OF THE SECURITIES, OTHER THAN THE REGISTRATION STATEMENT AND THE PROSPECTUS.
5.9.
THE OFFER AND SALE OF THE SHARES AND THE
WARRANTS BY THE COMPANY TO THE INVESTOR AT THE CLOSING, AND THE WARRANT SHARES
UPON EXERCISE OF THE WARRANTS WILL BE MADE PURSUANT TO THE REGISTRATION
STATEMENT AND THE PROSPECTUS, AND WILL COMPLY IN ALL MATERIAL RESPECTS WITH THE
REQUIREMENTS OF THE SECURITIES ACT, THE EXCHANGE ACT AND THE RULES AND
REGULATIONS.
5.10.
AT THE CLOSING, THE SHARES AND THE WARRANTS, AND UPON
EXERCISE OF THE WARRANTS (AND ASSUMING THE REGISTRATION STATEMENT IS EFFECTIVE
AND AVAILABLE AT THE TIME OF SUCH EXERCISE), THE WARRANT SHARES, SHALL BE ISSUED
TO THE INVESTOR WITHOUT ANY RESTRICTIVE OR OTHER LEGEND AND, AT ALL TIMES
FOLLOWING THE CLOSING, THERE SHALL EXIST NO RESTRICTION ON, OR ANY REQUIREMENT
IMPOSED BY THE COMPANY OR ITS TRANSFER AGENT WITH RESPECT TO, THE OFFER OR SALE
OF SHARES, THE WARRANTS OR THE WARRANT SHARES BY ANY INVESTOR, REGARDLESS OF
WHETHER SUCH OFFER OR SALE IS MADE TO THE PUBLIC, ON AN EXCHANGE (IN WHICH THE
CASE THE RULES OF SUCH EXCHANGE SHALL APPLY), IN A PRIVATE TRANSACTION, OR
OTHERWISE.
5.11.
THE COMPANY'S COMMON STOCK IS REGISTERED PURSUANT TO
SECTION 12(G) OF THE EXCHANGE ACT AND IS LISTED ON THE NASDAQ NATIONAL MARKET.
THE COMPANY CURRENTLY MEETS THE CONTINUING ELIGIBILITY REQUIREMENTS FOR LISTING
ON THE NASDAQ NATIONAL MARKET AND HAS NOT RECEIVED ANY NOTICE FROM NASDAQ THAT
IT DOES NOT CURRENTLY SATISFY SUCH REQUIREMENTS OR THAT SUCH CONTINUED LISTING
IS IN ANY WAY THREATENED.
THE COMPANY HAS TAKEN NO ACTION DESIGNED TO, OR
WHICH, TO THE KNOWLEDGE OF THE COMPANY, WOULD REASONABLY BE EXPECTED TO HAVE THE
EFFECT OF, TERMINATING THE REGISTRATION OF THE COMMON STOCK UNDER THE EXCHANGE
ACT OR DELISTING THE COMMON STOCK FROM THE NASDAQ NATIONAL MARKET.
THE ISSUANCE
AND SALE OF THE SHARES HEREUNDER DOES NOT AND WILL NOT CONTRAVENE THE RULES AND
REGULATIONS, OR ANY LISTING CRITERIA, OF THE NASDAQ NATIONAL MARKET. BASED ON
INFORMAL ADVICE OF THE STAFF OF THE NASD AND TO THE COMPANY'S KNOWLEDGE, THE
ISSUANCE AND SALE OF THE WARRANTS AND THE WARRANT SHARES HEREUNDER DOES NOT AND
WILL NOT CONTRAVENE THE RULES AND REGULATIONS, OR ANY LISTING CRITERIA, OF THE
NASDAQ NATIONAL MARKET
8
5.12.
THE FINANCIAL STATEMENTS OF THE COMPANY, TOGETHER WITH
RELATED NOTES AND SCHEDULES AS SET FORTH OR INCORPORATED BY REFERENCE IN THE
REGISTRATION STATEMENT, PRESENT FAIRLY THE FINANCIAL POSITION AND THE RESULTS OF
OPERATIONS AND CASH FLOWS OF THE COMPANY AS OF THE INDICATED DATES AND FOR THE
INDICATED PERIODS.
SUCH FINANCIAL STATEMENTS AND RELATED SCHEDULES HAVE BEEN
PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES,
CONSISTENTLY APPLIED THROUGH THE PERIODS INVOLVED, EXCEPT AS