CHARTER) IN ACCORDANCE WITH THE TERMS HEREOF AND THEREOF
(OTHER THAN ANY REQUIRED FILINGS THAT THE COMPANY IS PERMITTED TO MAKE WITH THE
COMMISSION, THE FINRA/NASDAQ OR STATE SECURITIES COMMISSIONS SUBSEQUENT TO THE
CLOSING, AND, ANY REGISTRATION STATEMENT (INCLUDING ANY AMENDMENT OR SUPPLEMENT
THERETO) OR ANY OTHER FILING OR CONSENT WHICH MAY BE FILED PURSUANT TO THIS
AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT OR THE WARRANT); PROVIDED THAT, FOR
PURPOSES OF THE REPRESENTATION MADE IN THIS SENTENCE, THE COMPANY IS ASSUMING
AND RELYING UPON THE ACCURACY OF THE RELEVANT REPRESENTATIONS AND AGREEMENTS OF
THE INVESTOR HEREIN.
SECTION 4.6
COMMISSION DOCUMENTS, FINANCIAL
STATEMENTS.
(A)
THE COMMON STOCK IS REGISTERED PURSUANT TO
SECTION 12(B) OR 12(G) OF THE EXCHANGE ACT, AND SINCE DECEMBER 1, 2007 THE
COMPANY HAS TIMELY FILED ALL REPORTS, SCHEDULES, FORMS, STATEMENTS AND OTHER
DOCUMENTS REQUIRED TO BE FILED BY IT WITH THE COMMISSION PURSUANT TO THE
REPORTING REQUIREMENTS OF THE EXCHANGE ACT, INCLUDING MATERIAL FILED PURSUANT TO
SECTION 13(A) OR 15(D) OF THE EXCHANGE ACT (ALL OF THE FOREGOING, AND, FOR THE
PURPOSE OF DETERMINING THE COMPANY'S COMPLIANCE WITH SECTION 7.1 HEREOF, ANY
SUCH REPORTS, SCHEDULES, FORMS, STATEMENTS AND OTHER DOCUMENTS FILED WITH THE
COMMISSION AND PUBLICLY AVAILABLE AFTER THE DATE HEREOF BUT ON OR PRIOR TO THE
APPLICABLE CONDITION SATISFACTION DATE, INCLUDING FILINGS INCORPORATED BY
REFERENCE, BEING REFERRED TO HEREIN AS THE "COMMISSION DOCUMENTS").
EXCEPT AS
PREVIOUSLY DISCLOSED TO THE INVESTOR IN WRITING, SINCE DECEMBER 31, 2007 THE
COMPANY HAS MAINTAINED ALL REQUIREMENTS FOR THE CONTINUED LISTING OR QUOTATION
OF ITS COMMON STOCK, AND SUCH COMMON STOCK IS CURRENTLY LISTED OR QUOTED ON THE
NASDAQ GLOBAL MARKET.
THE COMPANY HAS MADE AVAILABLE (INCLUDING THROUGH THE
COMMISSION'S EDGAR FILING SYSTEM) TO THE INVESTOR TRUE AND COMPLETE COPIES OF
THE COMMISSION DOCUMENTS FILED WITH THE COMMISSION SINCE DECEMBER 31, 2007 AND
PRIOR TO THE CLOSING DATE.
THE COMPANY HAS NOT PROVIDED TO THE INVESTOR ANY
INFORMATION WHICH, ACCORDING TO APPLICABLE LAW, RULE OR REGULATION, SHOULD HAVE
BEEN DISCLOSED PUBLICLY BY THE COMPANY BUT WHICH HAS NOT BEEN SO DISCLOSED,
OTHER THAN WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
AS
OF THE DATE IT WAS FILED WITH THE COMMISSION, THE COMPANY'S ANNUAL REPORT ON
FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2007 COMPLIED IN ALL MATERIAL RESPECTS
WITH THE REQUIREMENTS OF THE EXCHANGE ACT AND THE RULES AND REGULATIONS OF THE
COMMISSION PROMULGATED THEREUNDER THEN-APPLICABLE TO SUCH DOCUMENT, AND, AS OF
THE DATE IT WAS FILED WITH THE COMMISSION, AFTER GIVING EFFECT TO THE
INFORMATION DISCLOSED AND INCORPORATED BY REFERENCE THEREIN, TO THE COMPANY'S
KNOWLEDGE SUCH ANNUAL REPORT ON FORM 10-K DID NOT CONTAIN ANY UNTRUE STATEMENT
OF A MATERIAL FACT OR 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.
AS OF THEIR
RESPECTIVE DATES, TO THE COMPANY'S KNOWLEDGE THE FINANCIAL STATEMENTS, TOGETHER
WITH THE RELATED NOTES AND SCHEDULES THERETO, OF THE
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