IN OR INCORPORATED
INTO THE PROSPECTUS.
(M)
NO CONSENTS REQUIRED.
NO CONSENT, APPROVAL, AUTHORIZATION, ORDER,
REGISTRATION OR QUALIFICATION OF OR WITH ANY COURT OR ARBITRATOR OR GOVERNMENTAL
OR REGULATORY AUTHORITY IS REQUIRED FOR THE EXECUTION, DELIVERY AND PERFORMANCE
BY THE COMPANY THIS AGREEMENT, THE ISSUANCE AND SALE BY THE COMPANY OF THE
PLACEMENT SHARES, EXCEPT FOR THE REGISTRATION OF THE PLACEMENT SHARES UNDER THE
ACT AND SUCH CONSENTS, APPROVALS, AUTHORIZATIONS, ORDERS AND REGISTRATIONS OR
QUALIFICATIONS AS MAY BE REQUIRED UNDER APPLICABLE STATE SECURITIES LAWS OR BY
THE BY-LAWS AND RULES OF THE FINANCIAL INDUSTRY REGULATORY AUTHORITY ("FINRA")
OR THE EXCHANGE IN CONNECTION WITH THE SALE OF THE PLACEMENT SHARES BY WM SMITH.
(N)
NO PREFERENTIAL RIGHTS.
EXCEPT AS SET FORTH IN THE REGISTRATION
STATEMENT AND THE PROSPECTUS, (I) NO PERSON, AS SUCH TERM IS DEFINED IN
RULE 1-02 OF REGULATION S-X PROMULGATED UNDER THE SECURITIES ACT (EACH, A
"PERSON"), HAS THE RIGHT, CONTRACTUAL OR OTHERWISE, TO CAUSE THE COMPANY TO
ISSUE OR SELL TO SUCH PERSON ANY SHARES OF COMMON STOCK OR SHARES OF ANY OTHER
CAPITAL STOCK OR OTHER SECURITIES OF THE COMPANY, (II) NO PERSON HAS ANY
PREEMPTIVE RIGHTS, RESALE RIGHTS, RIGHTS OF FIRST REFUSAL, OR ANY OTHER RIGHTS
(WHETHER PURSUANT TO A "POISON PILL" PROVISION OR OTHERWISE) TO PURCHASE ANY
SHARES OF COMMON STOCK OR SHARES OF ANY OTHER CAPITAL STOCK OR OTHER SECURITIES
OF THE COMPANY, (III) FOLLOWING EXPIRATION OF THE TEN (10) DAY NOTICE PERIOD
REQUIRED FOR THE TERMINATION OF THE COMPANY'S PREVIOUS CONTROLLED EQUITY
OFFERING AGREEMENT WITH CANTOR FITZGERALD & CO., NO PERSON HAS THE RIGHT TO ACT
AS AN UNDERWRITER OR AS A FINANCIAL ADVISOR TO THE COMPANY IN CONNECTION WITH
THE OFFER AND SALE OF THE SHARES, AND (IV) NO
8
PERSON HAS THE RIGHT, CONTRACTUAL OR OTHERWISE, TO REQUIRE THE COMPANY TO
REGISTER UNDER THE SECURITIES ACT ANY SHARES OF COMMON STOCK OR SHARES OF ANY
OTHER CAPITAL STOCK OR OTHER SECURITIES OF THE COMPANY, OR TO INCLUDE ANY SUCH
SHARES OR OTHER SECURITIES IN THE REGISTRATION STATEMENT OR THE OFFERING
CONTEMPLATED THEREBY, WHETHER AS A RESULT OF THE FILING OR EFFECTIVENESS OF THE
REGISTRATION STATEMENT OR THE SALE OF THE PLACEMENT SHARES AS CONTEMPLATED
THEREBY OR OTHERWISE.
(O)
INDEPENDENT PUBLIC ACCOUNTANT.
PMB HELIN DONOVAN, LLP ("PMB HELIN
DONOVAN"), WHOSE REPORT ON THE CONSOLIDATED FINANCIAL STATEMENTS OF THE COMPANY
IS FILED WITH THE COMMISSION AS PART OF THE REGISTRATION STATEMENT AND THE
PROSPECTUS, ARE AND, DURING THE PERIODS COVERED BY THEIR REPORT, WERE
INDEPENDENT PUBLIC ACCOUNTANTS WITHIN THE MEANING OF THE SECURITIES ACT AND THE
PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD (UNITED STATES).
TO THE COMPANY'S
KNOWLEDGE, AFTER DUE AND CAREFUL INQUIRY, PMB HELIN DONOVAN IS NOT IN VIOLATION
OF THE AUDITOR INDEPENDENCE REQUIREMENTS OF THE SARBANES-OXLEY ACT OF 2002 (THE
"SARBANES-OXLEY ACT") WITH RESPECT TO THE COMPANY.
(P)
ENFORCEABILITY OF AGREEMENTS.
TO THE KNOWLEDGE OF THE COMPANY, ALL
AGREEMENTS BETWEEN THE COMPANY AND THIRD PARTIES EXPRESSLY REFERENCED IN THE
PROSPECTUS ARE LEGAL, VALID AND BINDING OBLIGATIONS OF THE COMPANY ENFORCEABLE