AND
COMPLETE COPIES OF (A) THE COMPANY'S ANNUAL REPORT ON FORM 10-K FOR THE FISCAL
YEAR ENDED JUNE 30, 2005, (B) THE COMPANY'S QUARTERLY REPORT ON FORM 10-Q FOR
THE FISCAL QUARTER ENDED SEPTEMBER 30, 2005, (C) THE COMPANY'S DEFINITIVE PROXY
STATEMENT DATED APRIL 26, 2005 RELATING TO ITS ANNUAL MEETING OF STOCKHOLDERS,
AND (D) ALL THE COMPANY'S CURRENT REPORTS ON FORM 8-K FILED SINCE JULY 1, 2005
(THE "SEC REPORTS").
THE SEC REPORTS WHEN FILED, COMPLIED IN ALL MATERIAL
RESPECTS WITH ALL APPLICABLE REQUIREMENTS OF THE EXCHANGE ACT AND THE
SARBANES-OXLEY ACT OF 2002, IF AND TO THE EXTENT APPLICABLE, AND THE RULES AND
REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION (THE "SEC") THEREUNDER
APPLICABLE TO THE SEC REPORTS.
NONE OF THE SEC REPORTS, AT THE TIME OF FILING,
CONTAINED ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITTED TO STATE A MATERIAL
FACT REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS
THEREIN NOT MISLEADING IN LIGHT OF THE CIRCUMSTANCES IN WHICH THEY WERE MADE.
THE COMPANY HAS TAKEN, OR WILL HAVE TAKEN PRIOR TO THE CLOSING, ALL NECESSARY
ACTIONS TO MAINTAIN ELIGIBILITY OF ITS COMMON STOCK FOR TRADING ON, OCT BULLETIN
BOARD UNDER ALL CURRENTLY EFFECTIVE INCLUSION REQUIREMENTS.
EACH BALANCE SHEET
INCLUDED IN THE SEC REPORTS (INCLUDING ANY RELATED NOTES AND SCHEDULES) FAIRLY
PRESENTS IN ALL MATERIAL RESPECTS THE CONSOLIDATED FINANCIAL POSITION OF THE
COMPANY AS OF ITS DATE, AND EACH OF THE OTHER FINANCIAL STATEMENTS INCLUDED IN
THE SEC REPORTS (INCLUDING ANY RELATED NOTES AND SCHEDULES) FAIRLY PRESENTS IN
ALL MATERIAL RESPECT THE CONSOLIDATED RESULTS OF OPERATIONS OF THE COMPANY FOR
THE PERIODS OR AS OF THE DATES THEREIN SET FORTH IN ACCORDANCE WITH GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES ("GAAP") CONSISTENTLY APPLIED DURING THE PERIODS
OR AS A RESULT OF YEAR END ADJUSTMENTS AND EXCEPT AS OTHERWISE STATED THEREIN).
SUCH FINANCIAL STATEMENTS INCLUDED IN THE SEC REPORTS WERE, AT THE TIME THEY
WERE FILED, CONSISTENT WITH THE BOOKS AND RECORDS OF THE COMPANY IN ALL MATERIAL
RESPECTS AND COMPLIED AS TO FORM IN ALL MATERIAL RESPECTS WITH THEN APPLICABLE
ACCOUNTING REQUIREMENTS AND WITH THE RULES AND REGULATIONS OF THE SEC WITH
RESPECT THERETO.
THE COMPANY KEEPS ACCOUNTING RECORDS IN WHICH ALL MATERIAL
ASSETS AND LIABILITIES, AND ALL MATERIAL TRANSACTIONS, INCLUDING OFF-BALANCE
SHEET TRANSACTIONS, OF THE COMPANY ARE RECORDED IN ACCORDANCE WITH GAAP.
7
SECTION 2.06.
GOVERNMENTAL APPROVALS.
SUBJECT TO THE ACCURACY OF THE
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS SET FORTH IN ARTICLE III, NO
REGISTRATION OR FILING WITH, OR CONSENT OR APPROVAL OF OR OTHER ACTION BY, ANY
FEDERAL, STATE OR OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY IS OR WILL BE
NECESSARY FOR THE VALID EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY OF
THIS AGREEMENT, THE ISSUANCE, SALE AND DELIVERY OF THE NOTES OR WARRANTS OR,
UPON EXERCISE THEREOF, THE ISSUANCE AND DELIVERY OF THE WARRANT SHARES, OTHER
THAN FILINGS PURSUANT TO STATE SECURITIES LAWS (ALL OF WHICH FILINGS HAVE BEEN
MADE BY THE COMPANY, OTHER THAN THOSE WHICH ARE REQUIRED OR