RELATING TO, OR SECURITIES,
RIGHTS OR OBLIGATIONS CONVERTIBLE INTO OR EXCHANGEABLE FOR, OR GIVING ANY PERSON
ANY RIGHT TO SUBSCRIBE FOR OR ACQUIRE, ANY SHARES OF COMMON STOCK, OR CONTRACTS,
COMMITMENTS, UNDERSTANDINGS OR ARRANGEMENTS BY WHICH THE COMPANY OR ANY
SUBSIDIARY IS OR MAY BECOME BOUND TO ISSUE ADDITIONAL SHARES OF COMMON STOCK, OR
SECURITIES OR RIGHTS CONVERTIBLE OR EXCHANGEABLE INTO SHARES OF COMMON STOCK.
THE ISSUE AND SALE OF THE SECURITIES WILL NOT, 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.
(H)
SEC REPORTS; FINANCIAL STATEMENTS.
EXCEPT AS DISCLOSED IN
SCHEDULE 3.1(H), THE COMPANY HAS FILED ALL REPORTS 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 TWELVE MONTHS PRECEDING THE DATE HEREOF (OR SUCH
SHORTER PERIOD AS THE COMPANY WAS REQUIRED BY LAW TO FILE SUCH REPORTS) (THE
FOREGOING MATERIALS BEING COLLECTIVELY REFERRED TO HEREIN AS THE "SEC REPORTS"
AND, TOGETHER WITH THE SCHEDULES TO THIS AGREEMENT (IF ANY), THE "DISCLOSURE
MATERIALS") ON A TIMELY BASIS OR HAS TIMELY FILED A VALID EXTENSION OF SUCH TIME
OF FILING AND HAS FILED ANY SUCH SEC REPORTS PRIOR TO THE EXPIRATION OF ANY SUCH
EXTENSION.
AS OF THEIR DATES (AS AMENDED, WHERE APPLICABLE), 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 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 THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
THE FINANCIAL
STATEMENTS OF THE COMPANY INCLUDED IN THE SEC REPORTS (AS AMENDED, WHERE
APPLICABLE) COMPLY IN ALL MATERIAL RESPECTS WITH APPLICABLE ACCOUNTING
REQUIREMENTS AND THE RULES AND REGULATIONS OF THE COMMISSION WITH RESPECT
THERETO AS IN EFFECT AT THE TIME OF FILING.
SUCH FINANCIAL STATEMENTS HAVE BEEN
PREPARED IN ACCORDANCE WITH GAAP APPLIED ON A CONSISTENT BASIS DURING THE
PERIODS INVOLVED, EXCEPT AS MAY BE OTHERWISE SPECIFIED IN SUCH FINANCIAL
STATEMENTS OR THE NOTES THERETO, AND FAIRLY PRESENT IN ALL MATERIAL RESPECTS THE
FINANCIAL POSITION OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS OF AND
FOR THE DATES THEREOF AND THE RESULTS OF OPERATIONS AND CASH FLOWS FOR THE
PERIODS THEN ENDED, SUBJECT, IN THE CASE OF UNAUDITED STATEMENTS, TO NORMAL,
IMMATERIAL, YEAR-END AUDIT ADJUSTMENTS.
9
(I)
MATERIAL CHANGES.
SINCE THE DATE OF THE LATEST AUDITED
FINANCIAL STATEMENTS INCLUDED WITHIN THE SEC REPORTS, EXCEPT AS SPECIFICALLY
DISCLOSED IN THE SEC REPORTS, (I) THERE HAS BEEN NO EVENT, OCCURRENCE OR
DEVELOPMENT THAT HAS HAD OR THAT WOULD REASONABLY BE EXPECTED TO RESULT