INFORMATION BELIEVED TO BE MATERIAL TO THE
PATENTABILITY OF THE COMPANY PATENTS.
THERE ARE NO LEGAL OR GOVERNMENTAL
PROCEEDINGS PENDING RELATING TO COMPANY PATENTS OTHER THAN PROCEEDINGS IN THE
PTO, OR FOREIGN PATENT OFFICE REVIEW OF PENDING APPLICATIONS FOR PATENTS, AND,
OTHER THAN PTO (OR PATENT OFFICES IN OTHER JURISDICTIONS) REVIEW OF PENDING
APPLICATIONS FOR PATENTS, TO THE COMPANY'S KNOWLEDGE, NO SUCH PROCEEDINGS ARE
THREATENED OR CONTEMPLATED BY GOVERNMENTAL AUTHORITIES.
6
(C)
THERE ARE NO PENDING OR, TO THE COMPANY'S KNOWLEDGE, ANY
THREATENED, NOR HAS THE COMPANY RECEIVED ANY NOTICE OF ANY, ACTIONS, SUITS,
PROCEEDINGS, CLAIMS OR ALLEGATIONS BY OTHERS THAT THE COMPANY, INCLUDING THROUGH
USE OF THE COMPANY PATENTS, IS OR WILL BE INFRINGING ANY PATENT, TRADE SECRET,
TRADEMARK, SERVICE MARK, COPYRIGHT OR OTHER PROPRIETARY INTELLECTUAL PROPERTY
RIGHTS.
(D)
THE COMPANY IS NOT IN BREACH OF, AND HAS COMPLIED IN ALL RESPECTS
WITH, ALL TERMS OF, ANY OF THE LICENSE AGREEMENTS UNDER WHICH THE COMPANY
LICENSES A PATENT OR PATENT APPLICATION THAT COVERS TECHNOLOGY NECESSARY TO
CONDUCT OR USED IN THE CONDUCT OF THE COMPANY'S BUSINESS IN THE MANNER IN WHICH
IT IS CURRENTLY CONDUCTED, EXCEPT AS WOULD NOT, INDIVIDUALLY OR IN THE
AGGREGATE, HAVE A MATERIAL ADVERSE EFFECT.
(E)
ALL EMPLOYEES OF THE COMPANY HAVE EXECUTED AND DELIVERED TO AND IN
FAVOR OF THE COMPANY AN AGREEMENT REGARDING THE PROTECTION OF CONFIDENTIAL AND
PROPRIETARY INFORMATION AND THE ASSIGNMENT TO THE COMPANY OF ALL INTELLECTUAL
PROPERTY RIGHTS ARISING FROM THE SERVICES PERFORMED FOR THE COMPANY BY SUCH
PERSONS.
2.9
Financial Statements; Solvency.
(A)
THE FINANCIAL STATEMENTS OF THE COMPANY AND THE RELATED NOTES
CONTAINED IN THE EXCHANGE ACT DOCUMENTS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION (THE "SEC") SINCE JANUARY 1, 2008 PRESENT FAIRLY, IN ACCORDANCE WITH
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, THE FINANCIAL POSITION OF THE COMPANY
AND ITS SUBSIDIARIES AS OF THE DATES INDICATED, AND THE RESULTS OF ITS
OPERATIONS AND CASH FLOWS FOR THE PERIODS THEREIN SPECIFIED CONSISTENT WITH THE
BOOKS AND RECORDS OF THE COMPANY AND ITS SUBSIDIARIES EXCEPT THAT THE UNAUDITED
INTERIM FINANCIAL STATEMENTS WERE OR ARE SUBJECT TO NORMAL AND RECURRING
YEAR-END ADJUSTMENTS WHICH ARE NOT EXPECTED TO BE MATERIAL IN AMOUNT EXCEPT AS
OTHERWISE DESCRIBED IN SUCH EXCHANGE ACT DOCUMENTS.
SUCH FINANCIAL STATEMENTS
(INCLUDING THE RELATED NOTES) HAVE BEEN PREPARED IN ACCORDANCE WITH GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES APPLIED ON A CONSISTENT BASIS THROUGHOUT THE
PERIODS THEREIN SPECIFIED, EXCEPT AS MAY BE DISCLOSED IN THE NOTES TO SUCH
FINANCIAL STATEMENTS, OR IN THE CASE OF UNAUDITED STATEMENTS, AS MAY BE
PERMITTED BY THE SEC AND EXCEPT AS DISCLOSED IN THE EXCHANGE ACT DOCUMENTS.
THE
OTHER FINANCIAL INFORMATION CONTAINED IN SUCH EXCHANGE ACT DOCUMENTS HAS BEEN
PREPARED ON A BASIS CONSISTENT WITH THE FINANCIAL STATEMENTS OF THE COMPANY.
(B)
EXCEPT AS SET FORTH IN THE EXCHANGE ACT DOCUMENTS, THE COMPANY HAS
NO KNOWLEDGE OF ANY FACTS OR CIRCUMSTANCES WHICH LEAD IT TO BELIEVE THAT IT WILL
BE REQUIRED TO FILE FOR REORGANIZATION OR LIQUIDATION UNDER THE BANKRUPTCY OR
REORGANIZATION LAWS OF ANY JURISDICTION, AND