BE EXPECTED TO HAVE, A MATERIAL ADVERSE EFFECT, (V) ANY MATERIAL
CHANGE IN THE COMPANY'S METHOD OF ACCOUNTING, OR (VI) ANY ISSUANCE OF EQUITY
SECURITIES TO ANY OFFICER, DIRECTOR OR AFFILIATE, EXCEPT PURSUANT TO EXISTING
COMPANY STOCK OPTION PLANS OR AGREEMENTS.
3.11
NASDAQ COMPLIANCE.
THE COMPANY'S COMMON STOCK IS
REGISTERED PURSUANT TO SECTION 12(B) OF THE EXCHANGE ACT, AND IS LISTED ON THE
NASDAQ GLOBAL MARKET (THE "NASDAQ STOCK MARKET").
THE COMPANY HAS TAKEN NO
ACTION INTENDED TO TERMINATE THE REGISTRATION OF THE COMMON STOCK UNDER THE
EXCHANGE ACT OR DELISTING THE COMMON STOCK FROM THE NASDAQ STOCK MARKET, NOR HAS
THE COMPANY RECEIVED ANY NOTIFICATION THAT THE SEC OR THE NASDAQ STOCK MARKET IS
CONTEMPLATING TERMINATING SUCH REGISTRATION OR LISTING.
THE ISSUANCE OF THE
SECURITIES DOES NOT REQUIRE STOCKHOLDER APPROVAL, INCLUDING, WITHOUT LIMITATION,
PURSUANT TO FINRA RULE 5635(B) OR (D).
THE COMPANY IS IN COMPLIANCE WITH ALL
CORPORATE GOVERNANCE REQUIREMENTS OF THE NASDAQ STOCK MARKET.
EXCEPT AS SET
FORTH IN SECTION 3.11 OF THE DISCLOSURE, THE COMPANY HAS COMPLIED WITH ALL
REQUIREMENTS OF THE NASDAQ STOCK MARKET WITH RESPECT TO THE ISSUANCE OF THE
SECURITIES.
3.12
REPORTING STATUS.
THE COMPANY HAS TIMELY MADE ALL
FILINGS REQUIRED UNDER THE EXCHANGE ACT DURING THE 12 MONTHS PRECEDING THE DATE
OF THIS AGREEMENT, AND ALL OF THOSE DOCUMENTS COMPLIED IN ALL MATERIAL RESPECTS
WITH THE SEC'S REQUIREMENTS AS OF THEIR RESPECTIVE FILING DATES, AND THE
INFORMATION CONTAINED THEREIN AS OF THE RESPECTIVE DATES THEREOF DID NOT CONTAIN
AN UNTRUE STATEMENT OF A 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.
3.13
DISCLOSURE OF INFORMATION.
THE COMPANY HAS NOT
DISCLOSED ANY MATERIAL NON-PUBLIC INFORMATION TO THE INVESTORS.
7
3.14
ACCOUNTANTS.
PRICEWATERHOUSE COOPERS LLP, WHO
EXPRESSED THEIR OPINION WITH RESPECT TO THE CONSOLIDATED FINANCIAL STATEMENTS TO
BE INCORPORATED BY REFERENCE FROM THE COMPANY'S ANNUAL REPORT ON FORM 10-K FOR
THE YEAR ENDED DECEMBER 31, 2008 INTO THE REGISTRATION STATEMENT TO BE FILED
UNDER THE SECURITIES ACT AS PROVIDED IN SECTION 6.1 HEREOF (THE "REGISTRATION
STATEMENT") AND THE PROSPECTUS WHICH FORMS A PART THEREOF (THE "PROSPECTUS"),
HAVE ADVISED THE COMPANY THAT THEY ARE, AND TO THE KNOWLEDGE OF THE COMPANY THEY
ARE, INDEPENDENT ACCOUNTANTS AS REQUIRED BY THE SECURITIES ACT AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER (THE "RULES AND REGULATIONS").
EXCEPT AS
DESCRIBED IN THE SEC DOCUMENTS AND AS PRE-APPROVED IN ACCORDANCE WITH THE
REQUIREMENTS SET FORTH IN SECTION 10A OF THE EXCHANGE ACT, TO THE COMPANY'S
KNOWLEDGE, PRICEWATERHOUSE COOPERS LLP HAS NOT ENGAGED IN ANY "PROHIBITED
ACTIVITIES" (AS DEFINED IN SECTION 10A OF THE EXCHANGE ACT) ON BEHALF OF THE
COMPANY.
3.15
TAXES.
EXCEPT FOR MATTERS WHICH WOULD NOT
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, EACH OF THE COMPANY
AND THE SUBSIDIARIES HAS TIMELY FILED ALL NECESSARY FEDERAL, STATE AND FOREIGN
INCOME AND FRANCHISE TAX RETURNS AND HAS PAID OR ACCRUED ON THE BOOKS