IMMEDIATELY OR WITH THE PASSAGE OF TIME,
OBLIGATE THE COMPANY TO ISSUE SHARES OF COMMON STOCK OR OTHER SECURITIES TO ANY
PERSON (OTHER THAN THE INVESTORS) AND WILL NOT RESULT IN A RIGHT OF ANY HOLDER
OF COMPANY SECURITIES TO ADJUST THE EXERCISE, CONVERSION, EXCHANGE OR RESET
PRICE UNDER SUCH SECURITIES, OR UNDER ANY OTHER SECURITIES ISSUED BY THE
COMPANY.
(E)
CERTAIN REGISTRATION MATTERS.
ASSUMING THE ACCURACY OF THE
INVESTORS' REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.2(B)-(D), NO
REGISTRATION UNDER THE SECURITIES ACT IS REQUIRED FOR THE OFFER AND SALE OF THE
SELLING STOCKHOLDER SHARES AND WARRANTS AND THE OFFER OF CONVERSION SHARES BY
THE SELLING STOCKHOLDERS TO THE INVESTORS UNDER THE TRANSACTION
6
Documents. The Company is eligible to register its Common Stock for resale by
the Investors under Form S-3 promulgated under the Securities Act.
(F)
LISTING AND MAINTENANCE REQUIREMENTS.
EXCEPT AS SPECIFIED IN
THE SEC REPORTS, THE COMPANY HAS NOT, IN THE TWO YEARS PRECEDING THE DATE
HEREOF, RECEIVED NOTICE FROM ANY TRADING MARKET TO THE EFFECT THAT THE COMPANY
IS NOT IN COMPLIANCE WITH THE LISTING OR MAINTENANCE REQUIREMENTS THEREOF. THE
COMPANY IS, AND HAS NO REASON TO BELIEVE THAT IT WILL NOT IN THE FORESEEABLE
FUTURE CONTINUE TO BE, IN COMPLIANCE WITH THE LISTING AND MAINTENANCE
REQUIREMENTS FOR CONTINUED LISTING OF THE COMMON STOCK ON THE TRADING MARKET ON
WHICH THE COMMON STOCK IS CURRENTLY LISTED OR QUOTED. THE SALE OF THE SELLING
STOCKHOLDER SHARES AND WARRANTS DOES NOT CONTRAVENE THE RULES AND REGULATIONS OF
THE TRADING MARKET ON WHICH THE COMMON STOCK IS CURRENTLY LISTED OR QUOTED, AND
NO APPROVAL OF THE SHAREHOLDERS OF THE COMPANY THEREUNDER IS REQUIRED FOR ANY
SUCH ACTIONS. THE SELLING STOCKHOLDER SHARES AND THE CONVERSION SHARES ARE
LISTED ON THE TRADING MARKET ON WHICH THE COMMON STOCK IS CURRENTLY LISTED OR
QUOTED.
(G)
SEC REPORTS; FINANCIAL STATEMENTS.
THE COMPANY HAS FILED ALL
REPORTS, SCHEDULES, FORMS, STATEMENTS AND OTHER DOCUMENTS REQUIRED TO BE FILED
BY IT UNDER THE SECURITIES ACT AND THE EXCHANGE ACT, INCLUDING PURSUANT TO
SECTION 13(A) OR 15(D) THEREOF, FOR THE TWO YEARS PRECEDING THE DATE HEREOF (OR
SUCH SHORTER PERIOD AS THE COMPANY WAS REQUIRED BY LAW TO FILE SUCH MATERIAL)
(THE FOREGOING MATERIALS, INCLUDING THE EXHIBITS THERETO AND DOCUMENTS
INCORPORATED BY REFERENCE THEREIN, BEING COLLECTIVELY REFERRED TO HEREIN AS THE
"SEC REPORTS") ON A TIMELY BASIS OR HAS RECEIVED A VALID EXTENSION OF SUCH TIME
OF FILING AND HAS FILED ANY SUCH SEC REPORTS PRIOR TO THE EXPIRATION OF ANY SUCH
EXTENSION. EXCEPT AS SET FORTH ON SCHEDULE 3.1(G), AS OF THEIR RESPECTIVE DATES,
THE SEC REPORTS COMPLIED IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE
SECURITIES ACT AND THE EXCHANGE ACT AND THE RULES AND REGULATIONS OF THE
COMMISSION PROMULGATED THEREUNDER, AND NONE OF THE SEC REPORTS, WHEN FILED,
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, IN LIGHT OF