COMPANY'S EMPLOYEE STOCK OPTION PLAN, AGREEMENTS, CONVERTIBLE
SECURITIES, PREEMPTIVE RIGHTS TO SUBSCRIBE FOR OR OTHER COMMITMENTS PURSUANT TO
WHICH THE COMPANY IS, OR MAY BECOME, OBLIGATED TO ISSUE ANY SHARES OF ITS
CAPITAL STOCK OR OTHER SECURITIES OF THE COMPANY AND THIS OFFERING WILL NOT
CAUSE ANY ANTI-DILUTION ADJUSTMENTS TO SUCH SECURITIES OR COMMITMENTS.
4.19
FINANCIAL STATEMENTS.
THE COMPANY'S FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 2008 CONTAINS THE COMPANY'S (I) BALANCE SHEETS
AT DECEMBER 31, 2008 (THE "BALANCE SHEET DATE"), (II) STATEMENTS OF OPERATIONS
FOR EACH OF THE LAST TWO YEARS ENDING DECEMBER 31, 2007 AND DECEMBER 31, 2008,
AND (III) STATEMENTS OF CASH FLOW FOR EACH OF THE LAST TWO YEARS ENDING
DECEMBER 31, 2007 AND DECEMBER 31, 2008 (HEREINAFTER REFERRED TO COLLECTIVELY AS
THE "FINANCIAL STATEMENTS"). THE FINANCIAL STATEMENTS HAVE BEEN PREPARED IN
CONFORMITY WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES CONSISTENTLY APPLIED
AND SHOW ALL MATERIAL LIABILITIES, ABSOLUTE OR CONTINGENT, OF THE COMPANY
REQUIRED TO BE RECORDED THEREON AND PRESENT FAIRLY THE FINANCIAL POSITION AND
RESULTS OF OPERATIONS OF THE COMPANY AS OF THE DATES AND FOR THE PERIODS
INDICATED.
4.20
ABSENCE OF CHANGES.
OTHER THAN AS SET FORTH IN
THE COMPANY'S FILINGS WITH THE SEC AND THE DISCLOSURE SCHEDULE, SINCE THE
BALANCE SHEET DATE, NEITHER THE COMPANY NOR ANY SUBSIDIARY HAS INCURRED ANY
LIABILITIES OR OBLIGATIONS, DIRECT OR CONTINGENT, NOT IN THE ORDINARY COURSE OF
BUSINESS, OR ENTERED INTO ANY TRANSACTION NOT IN THE ORDINARY COURSE OF
BUSINESS, WHICH IS MATERIAL TO THE BUSINESS OF THE COMPANY AND THE SUBSIDIARIES,
TAKEN AS A WHOLE, AND THERE HAS NOT BEEN ANY CHANGE IN THE CAPITAL STOCK OF, OR
ANY INCURRENCE OF LONG-TERM DEBT BY, THE COMPANY OR ANY SUBSIDIARY, OR ANY
ISSUANCE OF OPTIONS, WARRANTS OR OTHER RIGHTS TO PURCHASE THE CAPITAL STOCK OF
THE COMPANY OR ANY SUBSIDIARY, OR ANY ADVERSE CHANGE OR ANY DEVELOPMENT
INVOLVING, SO FAR AS THE COMPANY CAN NOW REASONABLY FORESEE, A PROSPECTIVE
ADVERSE CHANGE IN THE CONDITION (FINANCIAL OR OTHERWISE), NET WORTH, RESULTS OF
OPERATIONS, BUSINESS, KEY PERSONNEL OR PROPERTIES WHICH WOULD BE MATERIAL TO THE
BUSINESS OR FINANCIAL CONDITION OF THE COMPANY OR ANY SUBSIDIARY, AND NEITHER
THE COMPANY NOR ANY SUBSIDIARY HAS BECOME A PARTY TO, AND NEITHER THE BUSINESS
NOR THE PROPERTY OF THE COMPANY OR ANY SUBSIDIARY HAS BECOME THE SUBJECT OF, ANY
MATERIAL LITIGATION WHETHER OR NOT IN THE ORDINARY COURSE OF BUSINESS.
V.
CLOSING
5.1
CLOSING.
THE CLOSING OF THE TRANSACTION
CONTEMPLATED HEREBY (THE "CLOSING") SHALL TAKE PLACE AT THE OFFICES OF THE
COMPANY AS SOON AS PRACTICABLE AFTER EACH OF THE CLOSING CONDITIONS HERETO HAS
BEEN MET OR WAIVED, WHICH DATE (THE "CLOSING DATE") MAY BE ACCELERATED OR
ADJOURNED BY AGREEMENT BETWEEN THE COMPANY AND THE HOLDERS.
5.2
CONDITIONS TO HOLDER'S OBLIGATIONS.
THE
OBLIGATIONS OF THE HOLDER HEREUNDER WILL BE SUBJECT TO THE ACCURACY OF THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY HEREIN CONTAINED AS OF THE DATE
HEREOF AND AS OF THE CLOSING DATE, AND TO THE PERFORMANCE BY THE COMPANY OF ITS