MAY NOT CONTAIN ALL FOOTNOTES REQUIRED BY GAAP OR MAY BE CONDENSED OR
SUMMARY STATEMENTS, AND FAIRLY PRESENT IN ALL MATERIAL RESPECTS THE CONSOLIDATED
FINANCIAL POSITION OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS OF AND
FOR THE DATES THEREOF AND THE RESULTS OF OPERATIONS AND CASH FLOWS FOR THE
PERIODS THEN ENDED, SUBJECT, IN THE CASE OF UNAUDITED STATEMENTS, TO NORMAL,
YEAR-END AUDIT ADJUSTMENTS.
ALL MATERIAL AGREEMENTS TO WHICH THE COMPANY OR ANY
SUBSIDIARY IS A PARTY OR TO WHICH THE PROPERTY OR ASSETS OF THE COMPANY OR ANY
SUBSIDIARY ARE SUBJECT ARE INCLUDED AS PART OF OR IDENTIFIED IN THE SEC REPORTS,
TO THE EXTENT SUCH AGREEMENTS ARE REQUIRED TO BE INCLUDED OR IDENTIFIED PURSUANT
TO THE RULES AND REGULATIONS OF THE SEC.
(B)
SINCE JANUARY 1, 2009, EXCEPT AS DISCLOSED IN SCHEDULE 3.6(B) HERETO,
(I) THERE HAS BEEN NO EVENT, OCCURRENCE OR DEVELOPMENT THAT, INDIVIDUALLY OR IN
THE AGGREGATE, HAS HAD OR THAT WOULD RESULT IN A MATERIAL ADVERSE EFFECT ON THE
COMPANY, (II) THE COMPANY HAS NOT INCURRED ANY MATERIAL LIABILITIES OTHER THAN
(A) TRADE PAYABLES AND ACCRUED EXPENSES INCURRED IN THE ORDINARY COURSE OF
BUSINESS CONSISTENT WITH PAST PRACTICE AND (B) LIABILITIES NOT REQUIRED TO BE
REFLECTED IN THE COMPANY'S FINANCIAL STATEMENTS PURSUANT TO GAAP OR REQUIRED TO
BE DISCLOSED IN FILINGS MADE WITH THE SEC, (III) THE COMPANY HAS NOT ALTERED ITS
METHOD OF ACCOUNTING OR CHANGED ITS AUDITORS, (IV) THE COMPANY HAS NOT DECLARED
OR MADE ANY DIVIDEND OR DISTRIBUTION OF CASH OR OTHER PROPERTY TO ITS
STOCKHOLDERS, IN THEIR CAPACITIES AS SUCH, OR PURCHASED, REDEEMED OR MADE ANY
AGREEMENTS TO PURCHASE OR REDEEM ANY SHARES OF ITS CAPITAL STOCK (EXCEPT FOR
6
REPURCHASES BY THE COMPANY OF SHARES OF CAPITAL STOCK HELD BY EMPLOYEES,
OFFICERS, DIRECTORS, OR CONSULTANTS PURSUANT TO AN OPTION TO REPURCHASE SUCH
SHARES UPON THE TERMINATION OF EMPLOYMENT OR SERVICES), AND (V) THE COMPANY HAS
NOT ISSUED ANY EQUITY SECURITIES TO ANY OFFICER, DIRECTOR OR AFFILIATE, EXCEPT
PURSUANT TO CURRENT OR PREVIOUSLY EXISTING COMPANY STOCK-BASED PLANS.
3.7
BROKERS OR FINDERS.
THE COMPANY HAS NOT INCURRED, AND SHALL NOT INCUR,
DIRECTLY OR INDIRECTLY, ANY LIABILITY FOR ANY BROKERAGE OR FINDERS' FEES OR
AGENTS COMMISSIONS OR ANY SIMILAR CHARGES IN CONNECTION WITH THIS AGREEMENT OR
ANY TRANSACTION CONTEMPLATED HEREBY.
3.8
THE NASDAQ GLOBAL SELECT MARKET. THE COMPANY'S COMMON STOCK IS LISTED ON
THE NASDAQ GLOBAL SELECT MARKET, AND THERE ARE NO PROCEEDINGS TO REVOKE OR
SUSPEND SUCH LISTING.
3.9
ABSENCE OF LITIGATION.
EXCEPT AS DISCLOSED IN THE COMPANY'S CURRENT SEC
REPORTS, THERE IS NO PROCEEDING, OR, TO THE COMPANY'S KNOWLEDGE, INQUIRY OR
INVESTIGATION, BEFORE OR BY ANY COURT, PUBLIC BOARD, GOVERNMENT AGENCY,
SELF-REGULATORY ORGANIZATION OR BODY PENDING OR, TO THE KNOWLEDGE OF THE
COMPANY, THREATENED AGAINST OR AFFECTING THE COMPANY THAT COULD, INDIVIDUALLY OR
IN THE AGGREGATE, HAVE OR REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE
EFFECT.
4.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
THE PURCHASER
REPRESENTS AND WARRANTS TO THE COMPANY AS FOLLOWS:
4.1
ORGANIZATION; AUTHORITY.
THE