APPROVAL AS REQUIRED UNDER THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED (THE "EXCHANGE ACT") AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER, (B) WITH RESPECT TO THE SECOND CLOSING AND ANY SUBSEQUENT CLOSINGS,
THE NASDAQ STOCKHOLDER APPROVAL, (C) AS MAY BE REQUIRED BY ANY APPLICABLE STATE
SECURITIES LAWS, OR (D) THE FILING OF THE CERTIFICATE OF DESIGNATIONS WITH THE
SECRETARY OF STATE OF THE STATE OF DELAWARE, THE COMPANY IS NOT REQUIRED TO
OBTAIN ANY CONSENT, AUTHORIZATION OR ORDER OF, OR MAKE ANY FILING OR
REGISTRATION WITH, ANY GOVERNMENTAL ENTITY IN ORDER FOR IT TO EXECUTE, DELIVER
OR PERFORM ANY OF ITS OBLIGATIONS UNDER OR CONTEMPLATED BY THE TRANSACTION
DOCUMENTS OR TO PERFORM ITS OBLIGATIONS UNDER THE CERTIFICATE OF DESIGNATIONS,
IN EACH CASE IN ACCORDANCE WITH THE TERMS HEREOF OR THEREOF.
ALL CONSENTS,
AUTHORIZATIONS, ORDERS, FILINGS AND REGISTRATIONS WHICH THE COMPANY IS REQUIRED
TO OBTAIN AS DESCRIBED IN THE PRECEDING SENTENCE SHALL HAVE BEEN OBTAINED OR
EFFECTED ON OR PRIOR TO EACH CLOSING DATE AND SHALL NOT BE THE SUBJECT OF ANY
PENDING OR, TO THE KNOWLEDGE OF THE COMPANY, THREATENED PROCEEDING OR OTHER
ACTION.
THE COMPANY IS NOT, AND AS OF EACH CLOSING DATE WILL NOT BE, IN
VIOLATION OF THE LISTING REQUIREMENTS OF THE NASDAQ, AND THE CONVERSION SHARES
SHALL BE AUTHORIZED FOR LISTING THEREON.
(G)
SEC DOCUMENTS; FINANCIAL STATEMENTS.
(I)
SINCE DECEMBER 31, 2008, THE COMPANY HAS FILED ALL REPORTS,
SCHEDULES, FORMS, STATEMENTS AND OTHER DOCUMENTS REQUIRED TO BE FILED BY IT WITH
THE SEC PURSUANT TO THE REPORTING REQUIREMENTS OF THE EXCHANGE ACT (ALL OF THE
FOREGOING (INCLUDING ALL EXHIBITS INCLUDED THEREIN AND FINANCIAL STATEMENTS AND
SCHEDULES THERETO AND DOCUMENTS INCORPORATED BY REFERENCE THEREIN) AND ALL
FORMS, DOCUMENTS AND INSTRUMENTS FILED BY THE COMPANY WITH THE SEC PURSUANT TO
THE SECURITIES ACT (INCLUDING ALL EXHIBITS INCLUDED THEREIN AND FINANCIAL
STATEMENTS AND SCHEDULES THERETO AND DOCUMENTS INCORPORATED BY REFERENCE
THEREIN) BEING HEREINAFTER REFERRED TO AS THE "SEC DOCUMENTS").
AS OF THEIR
RESPECTIVE DATES, THE SEC DOCUMENTS COMPLIED IN ALL MATERIAL RESPECTS WITH THE
REQUIREMENTS OF THE SECURITIES ACT OR EXCHANGE ACT AND THE RULES AND REGULATIONS
OF THE SEC PROMULGATED THEREUNDER APPLICABLE TO THE SEC DOCUMENTS.
NONE OF THE
SEC DOCUMENTS, AT THE TIME THEY WERE OR ARE FILED WITH THE SEC, CONTAINED OR
WILL CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITTED OR WILL OMIT TO
STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO
MAKE THE STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING.
(II)
AS OF THEIR RESPECTIVE DATES, THE FINANCIAL STATEMENTS OF THE
COMPANY INCLUDED IN THE SEC DOCUMENTS COMPLIED AS TO FORM (AND WILL COMPLY AS TO
FORM) IN ALL MATERIAL RESPECTS WITH U.S. GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES ("GAAP") AND THE PUBLISHED RULES AND REGULATIONS OF THE SEC WITH
RESPECT THERETO.
SUCH FINANCIAL STATEMENTS HAVE BEEN PREPARED IN ACCORDANCE
WITH GAAP, CONSISTENTLY APPLIED, DURING THE PERIODS INVOLVED (EXCEPT (A) AS MAY
BE
10
OTHERWISE SPECIFICALLY INDICATED IN SUCH