Common use of Commission Documents, Financial Statements Clause in Contracts

Commission Documents, Financial Statements. The Company is subject to the reporting requirements of the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or Exchange Act, as applicable, and the rules and regulations promulgated thereunder and, as of the date of such filing (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect thereto. Such financial statements have been prepared in accordance with GAAP consistently applied at the times and during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

Commission Documents, Financial Statements. The Common Stock of the Company is subject registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Company has 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 andAct. At the times of their respective filings, except as set forth on Schedule 3.11, has filed with all of the Commission all aforementioned reports, schedules, registration forms, statements and definitive proxy statements that the Company was other documents required to file be filed by it with the Commission on and after October 7, 2005 (collectively, the “SEC Commission Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or and the Exchange Act, as applicable, Act and the rules and regulations promulgated thereunder and, as of the date of such filing (or if amended or superseded by a filing prior to the date of this AgreementCommission promulgated thereunder, then on the date of such filing), such SEC Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents Each registration statement and any amendment thereto filed by the Company during the two years preceding the date hereof pursuant to the Securities Act and the rules and regulations thereunder, as of the date such statement or amendment became effective, complied as to form in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein not misleading; and each prospectus filed pursuant to Rule 424(b) under the Securities Act, as exhibits of its issue date and as of the closing of any sale of securities pursuant thereto did not contain any untrue statement of a material fact or omit to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not state any material fact required to be reflected stated therein or necessary in order to make the statements made therein, in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition light of the Company and its Subsidiaries taken as a wholecircumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Commission Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect theretoCommission. Such financial statements have been prepared in accordance with GAAP consistently generally accepted accounting principles (“GAAP”) applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or year-end adjustments or may be condensed or summary statements) ), and fairly present in all material respects the financial position of the Company and its Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has made available via XXXXX true and complete copies of the Commission Documents filed with or furnished to the reporting requirements of Commission prior to the Exchange Act anddate hereof (including, except as set forth on Schedule 3.11, has filed with the Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectivelywithout limitation, the “SEC Documents”2011 Form 10-K). The Company is has not aware of any event occurring or expected to occur on or prior provided to the Closing Date (Investor any information which, according to applicable law, rule or regulation, was required to have been disclosed publicly by the Company but which has not been so disclosed, other than the transactions effected hereby) that would require the filing of, or with respect to which the Company intends transactions contemplated by this Agreement. As of its filing date, each Commission Document filed with or furnished to filethe Commission (including, a without limitation, the 2011 Form 810-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this Agreementhereof, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents required Each Commission Document to be filed as exhibits with or furnished to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to Commission after the date of this Agreement (the “Disclosure Documents”)hereof, the Company has no liabilities, contingent or otherwise, other than liabilities incurred including any Commission Document incorporated by reference in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect thereto. Such financial statements have been prepared in accordance with GAAP consistently applied at the times and Registration Statement during the periods involved Term (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred Current Report), when such document becomes effective or is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as the case may be, shall comply in Section 2.4 all material respects with the requirements of this Agreementthe Securities Act or the Exchange Act, contains as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall not contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstance circumstances under which they are or were made, not misleading. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The Company has heretofore furnished to the Investor its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2011, reported on by Xxxxxx & Xxxxxx PC, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended September 30, 2012, certified by its chief financial officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statements. (c) The Company has heretofore furnished to the Investor its unaudited pro forma consolidated balance sheet and capitalization dated as of September 30, 2012. Such pro forma balance sheet and capitalization present fairly, in all material respects, the pro form financial position of the Company and its consolidated Subsidiaries as of such date. (d) The Company has timely filed with the Commission and made available via XXXXX all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 4.6(d), the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the Commission.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the reporting requirements Investor via XXXXX or otherwise true and complete copies of the Exchange Act and, except as set forth on Schedule 3.11, has Commission Documents filed with or furnished to the Commission all reportsSEC prior to the Commitment Closing Date (including, scheduleswithout limitation, registration statements and definitive proxy statements that the 2010 Form 10-K). No Subsidiary of the Company was is required to file or furnish any report, schedule, registration, form, statement, information or other document with the SEC. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Commitment Closing Date (other than including, without limitation, the transactions effected hereby2010 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementCommitment Closing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the SEC, on the date it is declared effective by the SEC, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement, when taken together, on its date, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the SEC Documents have been after the Commitment Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the SEC and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the SEC relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition SEC as of the Commitment Closing Date, together with all written responses of the Company thereto. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the SEC. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission SEC and all other applicable rules and regulations with respect theretothereto as may be subject to any applicable out of period adjustments disclosed in the Commission Documents. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to customary year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the SEC and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“ SOXA ”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.3(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the SEC. (d) Deloitte (the “Accounting Firm”), who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Commission DocumentsRegistration Statement and the Prospectus are, includingwith respect to the Company, without limitation, independent public accountants as required by the information referred to in Section 2.4 Securities Act and is an independent registered public accounting firm within the meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has made available via XXXXX true and complete copies of the Commission Documents filed with or furnished to the reporting requirements Commission prior to the Effective Date (including, without limitation, the 2015 Form 20-F) and has made available via XXXXX true and complete copies of all of the Exchange Act andCommission Documents heretofore incorporated by reference in the Registration Statement and the Prospectus. No Subsidiary of the Company is required to file or furnish any report, except as set forth on Schedule 3.11schedule, has filed registration, form, statement, information or other document with the Commission all reportsCommission. The Company has not provided to the Investor any information which, schedulesaccording to applicable law, registration statements and definitive proxy statements that the Company rule or regulation, was required to file with have been disclosed publicly by the Commission on and after October 7Company but which has not been so disclosed, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected hereby) that would require the filing of, or with respect to which the Company intends transactions contemplated by this Agreement. As of its filing date, each Commission Document filed with or furnished to filethe Commission and incorporated by reference in the Registration Statement and the Prospectus (including, a without limitation, the 2015 Form 820-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, F) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementEffective Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents Each Commission Document to be filed with or furnished to the Commission after the Effective Date and incorporated by reference in the Registration Statement, the Prospectus and any Prospectus Supplement required to be filed as exhibits pursuant to Section 1.4 hereof during the Investment Period (including, without limitation, the Current Report), when such document becomes effective or is filed with or furnished to the SEC Documents have been filed Commission and, if applicable, when such document becomes effective, as required. Except the case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as set forth in SEC Documents filed applicable, and available other federal, state and local laws, rules and regulations applicable to the public on XXXXX at least five (5) Business Days prior it, and shall not contain any untrue statement of a material fact or omit to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not state a material fact required to be reflected stated therein or necessary in order to make the financial statements included therein, in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition light of the circumstances under which they were made, not misleading. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (a) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission with respect theretoCommission. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof indicated and the results of its operations and cash flows for the periods then ended indicated (subject, in the case of unaudited statements, to normal year-end audit adjustments). (b) The Company has timely filed with the Commission and made available via XXXXX all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 ("SOXA")) with respect to all relevant Commission Documents. No The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company's Commission filings and other public disclosure documents. As used in this Section 4.6(c), the term "file" shall be broadly construed to include any manner in which a document or information provided is furnished, supplied or otherwise made available to the Commission. (c) Ernst & Young (Hellas) Certified Auditors-Accountants S.A., who have expressed their opinions on the audited financial statements and related schedules included or incorporated by or on behalf reference in the Registration Statement and the Base Prospectus are, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. Ernst & Young (Hellas) Certified Auditors Accountants S.A. has not been engaged by the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to perform any "prohibited activities" (as defined in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light 10A of the circumstance under which they are or were made, not misleadingExchange Act).

Commission Documents, Financial Statements. (a) The Company Common Stock is subject registered pursuant to the reporting requirements Section 12(b) or 12(g) of the Exchange Act and, except as set forth on Schedule 3.11disclosed in the Commission Documents, as of the Effective Date the Company had timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of the Commission Documents filed with the Commission prior to the Effective Date (including, without limitation, the 2009 Form 10-K) and has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of all reportsof the Commission Documents heretofore incorporated by reference in the Registration Statement and the Prospectus. The Company has not provided to the Investor any information which, schedulesaccording to applicable law, registration statements and definitive proxy statements that rule or regulation, should have been disclosed publicly by the Company was required but which has not been so disclosed, other than with respect to file the transactions contemplated by this Agreement. As of its filing date, each Commission Document filed with the Commission on and after October 7incorporated by reference in the Registration Statement and the Prospectus (including, 2005 (collectivelywithout limitation, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected hereby2009 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementEffective Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents Each Commission Document to be filed with the Commission after the Effective Date and incorporated by reference in the Registration Statement, the Prospectus and any Prospectus Supplement required to be filed as exhibits pursuant to Sections 1.4 and 5.9 hereof during the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to Investment Period (including, without limitation, the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”Current Report), when such document becomes effective or is filed with the Company has no liabilitiesCommission, contingent as the case may be, shall comply in all material respects with the requirements of the Securities Act or otherwisethe Exchange Act, as applicable, and other than liabilities incurred in the ordinary course federal, state and local laws, rules and regulations applicable to it, and shall not contain any untrue statement of business which, under GAAP, are not a material fact or omit to state a material fact required to be reflected stated therein or necessary in order to make the financial statements included therein, in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition light of the Company circumstances under which they were made, not misleading. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to normal year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 4.6(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the Commission. (d) Ernst & Young LLP, who have expressed their opinions on the audited financial statements and related schedules included or incorporated by reference in the Commission DocumentsRegistration Statement and the Base Prospectus are, includingwith respect to the Company, without limitation, independent public accountants as required by the information referred to in Section 2.4 Securities Act and is an independent registered public accounting firm within the meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. The Company is subject to the reporting requirements of the Exchange Act and, except (a) Except as set forth on in the Schedule 3.11of Exceptions, the Company has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of the Commission Documents filed with or furnished to the Commission all reportsSEC prior to the Commitment Closing Date (including, scheduleswithout limitation, registration statements and definitive proxy statements that the 2009 Form 10-K). No Subsidiary of the Company was is required to file or furnish any report, schedule, registration, form, statement, information or other document with the SEC. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Commitment Closing Date (other than including, without limitation, the transactions effected hereby2009 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementCommitment Closing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the SEC, on the date it is declared effective by the SEC, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement, when taken together, on its date, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the SEC Documents have been after the Commitment Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the SEC and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the SEC relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition SEC as of the Commitment Closing Date, together with all written responses of the Company thereto. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the SEC. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission SEC and all other applicable rules and regulations with respect theretothereto as may be subject to any applicable out of period adjustments disclosed in the Commission Documents. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to customary year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the SEC and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“ SOXA ”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; except to the Purchasers which is not included extent disclosed in the Commission Documents, including, without limitationsuch controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.3(c), the term “file” shall be broadly construed to include any manner in which a document or information referred is furnished, supplied or otherwise made available to in Section 2.4 of this Agreementthe SEC. (d) GBH CPAs, contains any untrue statement of a material fact PC who shall express their opinion on the audited financial statements and related schedules to be included or omits to state any material fact necessary in order to make the statements therein, incorporated by reference in the light Registration Statement and the Prospectus are, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2012 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2012 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). (c) The Company has timely filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. No The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information provided is furnished, supplied or otherwise made available to the Commission. (d) GBH CPAs, PC, who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by or on behalf reference in the Registration Statement and the Prospectus are, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. GBH CPAs, PC has not been engaged by the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to perform any “prohibited activities” (as defined in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light 10A of the circumstance under which they are or were made, not misleadingExchange Act).

Commission Documents, Financial Statements. (a) The Company Common Stock is subject registered pursuant to the reporting requirements Section 12(b) or 12(g) of the Exchange Act and, except as set forth on Schedule 3.11disclosed in the Commission Documents, as of the Effective Date the Company had timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the Investor via EXXXX true and complete copies of the Commission Documents filed with the Commission prior to the Effective Date (including, without limitation, the 2005 Form 10-K) and has delivered or made available to the Investor via EXXXX true and complete copies of all reportsof the Commission Documents heretofore incorporated by reference in the Registration Statement and the Prospectus. The Company has not provided to the Investor any information which, schedulesaccording to applicable law, registration statements and definitive proxy statements that rule or regulation, should have been disclosed publicly by the Company was required but which has not been so disclosed, other than with respect to file the transactions contemplated by this Agreement. As of its filing date, each Commission Document filed with the Commission on and after October 7incorporated by reference in the Registration Statement and the Prospectus (including, 2005 (collectivelywithout limitation, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected hereby2005 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the date of such its filing (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing)date, such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents Each Commission Document to be filed with the Commission after the Effective Date and incorporated by reference in the Registration Statement, the Prospectus and any Prospectus Supplement required to be filed as exhibits pursuant to Sections 1.4 and 5.9 hereof during the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to Investment Period (including, without limitation, the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”Current Report), when such document becomes effective or is filed with the Company has no liabilitiesCommission, contingent as the case may be, shall comply in all material respects with the requirements of the Securities Act or otherwisethe Exchange Act, as applicable, and other than liabilities incurred in the ordinary course federal, state and local laws, rules and regulations applicable to it, and shall not contain any untrue statement of business which, under GAAP, are not a material fact or omit to state a material fact required to be reflected stated therein or necessary in order to make the financial statements included therein, in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition light of the Company circumstances under which they were made, not misleading. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present present, subject to normal year-end adjustments, in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the Commission and made available to the Investor via EXXXX all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the Purchasers which is not included date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; except as disclosed in the Commission Documents, including, without limitationsuch controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 4.6(c), the term “file” shall be broadly construed to include any manner in which a document or information referred is furnished, supplied or otherwise made available to in Section 2.4 of this Agreementthe Commission. (d) Ernst & Young LLP, contains any untrue statement of a material fact who have expressed their opinions on the audited financial statements and related schedules included or omits to state any material fact necessary in order to make the statements therein, incorporated by reference in the light Registration Statement and the Base Prospectus is, with respect to the Company, an independent registered public accounting firm as required by the rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. The Company is subject HealthDesk has made available to the reporting requirements MCI a true and complete copy of the Exchange Act andeach statement, except as set forth on Schedule 3.11report, has registration statement, definitive proxy statement and other filings filed with the Commission all reportsby HealthDesk since January 1, schedules1998; and, registration statements and definitive proxy statements that prior to the Company was required Effective Time, HealthDesk will have made available to file MCI any additional documents filed with the Commission on and after October 7, 2005 by HealthDesk prior to the Effective Time (collectively, the “SEC "HealthDesk Commission Documents”"). The Company is not aware of any event occurring or expected In addition, HealthDesk has made available to occur on or MCI all exhibits to the HealthDesk Commission Documents filed prior to the Closing Date (other than date hereof, and will promptly make available to MCI all exhibits to any additional HealthDesk Commission Documents filed prior to the transactions effected hereby) that would require Effective Time. All documents required to be filed as exhibits to the HealthDesk Commission Documents have been so filed, and all material contracts so filed as exhibits are in full force and effect, except those which have expired in accordance with their terms, and neither HealthDesk nor any of its subsidiaries is in default thereunder. As of their respective filing ofdates, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied HealthDesk Commission Documents compiled in all material respects with the requirements of the Exchange Act and the Securities Act or Exchange Act, as applicable, and the rules and regulations promulgated thereunder and, as none of the date of such filing (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an HealthDesk Commission Documents contained any untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under in which they were made, not misleading. All documents required to be filed as exhibits , except to the SEC Documents have been extent corrected by a subsequently filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days HealthDesk Commission Document prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the hereof. The financial statements of HealthDesk, including the notes thereto, included in the Disclosure HealthDesk Commission Documents (the "HealthDesk Financial Statements") were complete and which, individually or correct in the aggregate, are not all material to the consolidated business or financial condition of the Company and its Subsidiaries taken respects as a whole. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto. Such financial statements thereto as of their respective dates, and have been prepared in accordance with GAAP consistently generally accepted accounting principles applied at the times and during on a basis consistent throughout the periods involved indicated and consistent with each other (except (i) as may be otherwise indicated in such financial statements or the notes theretothereto or, or (ii) in the case of unaudited interim statementsstatements included in Quarterly Reports on Form 10-Qs, to as permitted by Form 10-Q of the extent they may exclude footnotes or may be condensed or summary statements) and Commission). The HealthDesk Financial statements fairly present in all material respects the consolidated financial position condition and operating results of the Company as of HealthDesk and its subsidiaries at the dates thereof and the results of its operations and cash flows for during the periods then ended indicated therein (subject, in the case of unaudited statements, to normal normal, recurring year-end adjustments). No other information provided by There has been no change in HealthDesk accounting policies except as described in the notes to the HealthDesk Financial Statements. HealthDesk has filed in a timely manner all reports required to be filed with the Securities and Exchange Commission pursuant to Sections 13, 14 or on behalf 15(d) of the Company Exchange Act during the 12 calendar months prior to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleadingdate hereof.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2011 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2011 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). (c) The Company has timely filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. No The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information provided is furnished, supplied or otherwise made available to the Commission. (d) Xxxxxx Xxxxxx & Xxxxx, LLC, who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by or on behalf reference in the Registration Statement and the Prospectus are, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. Xxxxxx Xxxxxx & Samyn, LLC has not been engaged by the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to perform any “prohibited activities” (as defined in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light 10A of the circumstance under which they are or were made, not misleadingExchange Act).

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the reporting requirements Investor via EXXXX or otherwise true and complete copies of the Exchange Act and, except as set forth on Schedule 3.11, has Commission Documents filed with or furnished to the Commission all reportsSEC prior to the Commitment Closing Date (including, scheduleswithout limitation, registration statements and definitive proxy statements that the 2010 Form 10-K). No Subsidiary of the Company was is required to file or furnish any report, schedule, registration, form, statement, information or other document with the SEC. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Commitment Closing Date (other than including, without limitation, the transactions effected hereby2010 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementCommitment Closing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the SEC, on the date it is declared effective by the SEC, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement, when taken together, on its date, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the SEC Documents have been after the Commitment Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the SEC and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on XXXXX at least five (5) Business Days prior Investor via EXXXX or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the SEC relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition SEC as of the Commitment Closing Date, together with all written responses of the Company thereto. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the SEC. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission SEC and all other applicable rules and regulations with respect theretothereto as may be subject to any applicable out of period adjustments disclosed in the Commission Documents. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to customary year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the SEC and made available to the Investor via EXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (“ SOXA ”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.3(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the SEC. (d) Wxxxxxxx & Bxxx LLC (the “Accounting Firm”), who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Commission DocumentsRegistration Statement and the Prospectus are, includingwith respect to the Company, without limitation, independent public accountants as required by the information referred to in Section 2.4 Securities Act and is an independent registered public accounting firm within the meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. The Company is subject to the reporting requirements of the Exchange Act andAct, except as set forth on Schedule 3.11of the Closing Date, and has filed with the Commission all reports, schedules, registration statements and definitive proxy statements (if any) that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected herebyhereby and related hereto) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or Exchange Act, as applicable, and the rules and regulations promulgated thereunder and, as of the date of such filing (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX EXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect thereto. Such financial statements have been prepared in accordance with GAAP consistently applied at the times and during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission SEC Documents, including, without limitation, the information referred to in Section 2.4 of this AgreementAgreement and the disclosure schedules attached hereto, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the reporting requirements Investor via XXXXX or otherwise true and complete copies of the Exchange Act and, except as set forth on Schedule 3.11, has Commission Documents filed with or furnished to the Commission all reportsSEC prior to the Commitment Closing Date(including, scheduleswithout limitation, registration statements and definitive proxy statements that the 2010 Form 10-K). No Subsidiary of the Company was is required to file or furnish any report, schedule, registration, form, statement, information or other document with the SEC. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Commitment Closing Date (other than including, without limitation, the transactions effected hereby2010 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementCommitment Closing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the SEC, on the date it is declared effective by the SEC, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement, when taken together, on its date, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the SEC Documents have been after the Commitment Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the SEC and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the SEC relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition SEC as of the Commitment Closing Date, together with all written responses of the Company thereto. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the SEC. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission SEC and all other applicable rules and regulations with respect theretothereto as may be subject to any applicable out of period adjustments disclosed in the Commission Documents. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to customary year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the SEC and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“ SOXA ”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.3(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the SEC. (d) Xxxxxx & Associates CPA’s, Inc.(the “Accounting Firm”), who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Commission DocumentsRegistration Statement and the Prospectus are, includingwith respect to the Company, without limitation, independent public accountants as required by the information referred to in Section 2.4 Securities Act and is an independent registered public accounting firm within the meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the reporting requirements Investor via EXXXX or otherwise true and complete copies of the Exchange Act and, except as set forth on Schedule 3.11, has Commission Documents filed with or furnished to the Commission all reports, schedules, registration statements and definitive proxy statements that prior to the Closing Date. No Subsidiary of the Company was is required to file or furnish any report, schedule, registration, form, statement, information or other document with the Commission. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or Commission prior to the Closing Date (other than the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission (or becomes effective pursuant to Section 8 of the Securities Act), on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on XXXXX at least five (5) Business Days prior Investor via EXXXX or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via EXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the Commission and made available to the Investor via EXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company to maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Purchasers which is not included Exchange Act; Except as set forth in the Commission Documents, including, without limitationsuch controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information referred is furnished, supplied or otherwise made available to the Commission. (d) HJ & Associates, LLC, which shall express its opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Registration Statement and the Prospectus is, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. HJ & Associates, LLC has not been engaged by the Company to perform any “prohibited activities” (as defined in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light 10A of the circumstance under which they are or were made, not misleadingExchange Act).

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2016 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2016 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). (c) The Company has filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. No The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information provided is furnished, supplied or otherwise made available to the Commission. (d) Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxx & Guttila, P.C., who have expressed their opinion on the audited financial statements and related schedules to be included or incorporated by or on behalf reference in the Registration Statement and the Prospectus are, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxx & Guttila, P.C. has not been engaged by the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to perform any “prohibited activities” (as defined in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light 10A of the circumstance under which they are or were made, not misleadingExchange Act).

Commission Documents, Financial Statements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act and the Company is subject 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 materials filed pursuant to Section 13(a) or 15(d) of the Exchange Act and(all of the foregoing, except including filings incorporated by reference therein, being referred to herein as set forth the "Commission Documents"). Except as previously disclosed to the Investor in writing, 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 Schedule 3.11a Principal Market. The Company has made available to the Investor, or otherwise has made available on its website, true and complete copies of the Commission Documents filed with the Commission all reportssince December 31, schedules2002, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (Date. As of the date hereof, 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 the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to filetransactions contemplated by this Agreement. As of its date, a the Company's Annual Report on Form 810-K after for the Closing. Each SEC Documentyear ended December 31, as of the date of the filing thereof with the Commission2003, complied in all material respects with the requirements of the Securities Exchange Act or Exchange Act, as applicable, and the rules and regulations of the Commission promulgated thereunder applicable to such document, and, as of the date of such filing (or if amended or superseded by a filing prior its date, after giving effect to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits information disclosed and schedules thereto and documents incorporated by reference therein) , such Form 10-K did not contain an 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the financial statements of the Company included in the SEC Commission Documents filed with the Commission since December 31, 2002, complied as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with GAAP consistently generally accepted accounting principles in the United States ("GAAP") applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2012 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). (c) The Company has timely filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. No The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information provided is furnished, supplied or otherwise made available to the Commission. (d) Tarvaran, Xxxxxxxx & Company, LLP, who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by or on behalf reference in the Registration Statement and the Prospectus are, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. Tarvaran, Xxxxxxxx & Company, LLP has not been engaged by the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to perform any “prohibited activities” (as defined in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light 10A of the circumstance under which they are or were made, not misleadingExchange Act).

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via EXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2011 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2011 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on XXXXX at least five (5) Business Days prior Investor via EXXXX or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via EXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements or may be subject to normal year-end adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end adjustmentsadjustments and the absence of footnotes or may be condensed or summary statements). (c) The Company has timely filed with the Commission and made available to the Investor via EXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. No The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information provided is furnished, supplied or otherwise made available to the Commission. (d) Cxxxx Hxxxxxx LLP, who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by or on behalf reference in the Registration Statement and the Prospectus are, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. Cxxxx Hxxxxxx LLP has not been engaged by the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to perform any “prohibited activities” (as defined in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light 10A of the circumstance under which they are or were made, not misleadingExchange Act).

Commission Documents, Financial Statements. The (i) Since November 14, 2023, the Company is subject has timely filed all Commission Documents required to be filed with or furnished to the reporting requirements Commission by the Company under the Securities Act or the Exchange Act, including those required to be filed with or furnished to the Commission under Section 13(a) or Section 15(d) of the Exchange Act andAct, except as set forth including, without limitation, the Registration Statement on Schedule 3.11, has Form S-1 (File No. 333-269246) filed with the Commission on January 17, 2023, as amended through the date of this Agreement, including financial statements, all reportsexhibits and any information deemed to be included or incorporated by reference therein, schedules, registration statements and definitive proxy statements that any information deemed to be included therein pursuant to Rule 430A or Rule 430B of the Company was required to file with the Commission on and after October 7, 2005 Securities Act (collectively, the “SEC IPO Registration Statement”) (all of the foregoing filed prior to the date of this Agreement and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “Commission Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as As of the date of this Agreement, no Subsidiary of the filing thereof Company is required to file or furnish any report, schedule, registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents required Each Commission Document to be filed as exhibits with or furnished to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to Commission after the date of this Agreement (the “Disclosure Documents”)including, without limitation, the Company has no liabilitiesCurrent Report, contingent when such document is filed with or otherwisefurnished to the Commission and, if applicable, when such document becomes effective, as the case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other than liabilities incurred in the ordinary course federal, state and local laws, rules and regulations applicable to it, and shall not contain any untrue statement of business which, under GAAP, are not a material fact or omit to state a material fact required to be reflected stated therein or necessary in order to make the financial statements included therein, in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition light of the circumstances under which they were made, not misleading. There are no outstanding or unresolved comments received by the Company and its Subsidiaries taken as a wholefrom the Commission. As The Commission has not issued any stop order or other order suspending the effectiveness of their respective dates, any registration statement filed by the Company under the Securities Act or the Exchange Act. (ii) The consolidated financial statements of the Company included or incorporated by reference in the SEC Commission Documents complied as filed with or furnished to form the Commission, together with the related notes and schedules, present fairly, in all material respects with applicable accounting requirements respects, the consolidated financial position of the Company and the published rules and regulations consolidated Subsidiaries as of the Commission with respect thereto. Such financial statements dates indicated and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company and the consolidated Subsidiaries for the periods specified (subject, in the case of unaudited statements, to normal year-end audit adjustments which shall not be material, either individually or in the aggregate) and have been prepared in accordance compliance with GAAP consistently the published requirements of the Securities Act and Exchange Act, as applicable, and in conformity with generally accepted accounting principles in the United States (“GAAP”) applied at the times and during the periods involved on a consistent basis (except (iA) for such adjustments to accounting standards and practices as may be otherwise indicated in such financial statements or the notes thereto, or are noted therein and (iiB) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for during the periods then ended (subject, in the case of unaudited statements, to normal year-end adjustments)involved. No other information provided The pro forma financial statements or data included or incorporated by or on behalf of the Company to the Purchasers which is not included reference in the Commission DocumentsDocuments filed with or furnished to the Commission comply with the requirements of Regulation S-X of the Securities Act, including, without limitation, Article 11 thereof, and the information assumptions used in the preparation of such pro forma financial statements and data are reasonable, the pro forma adjustments used therein are appropriate to give effect to the circumstances referred to therein and the pro forma adjustments have been properly applied to the historical amounts in the compilation of those statements and data. The other financial and statistical data with respect to the Company and Subsidiaries contained or incorporated by reference in the Commission Documents filed with or furnished to the Commission, if any, are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and records of the Company. There are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Commission Documents filed with or furnished to the Commission that are not included or incorporated by reference as required. The Company and Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations or any “variable interest entities” as that term is used in Accounting Standards Codification Paragraph 000-00-00-00), not described in the Commission Documents that are required to be described or incorporated by reference in the Commission Documents. All disclosures contained in the Commission Documents, if any, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The reserves, if any, established by the Company or the lack of reserves, if applicable, are reasonable based upon facts and circumstances known by the Company on the date of this Agreement and there are no loss contingencies that are required to be accrued by the Statement of Financial Accounting Standard No. 5 of the Financial Accounting Standards Board which are not provided for by the Company in its financial statements or otherwise. The Company is not currently contemplating to amend or restate any of the financial statements included in the Commission Documents (including, without limitation, any notes or any letter of the independent accountants of the Company with respect thereto), nor is the Company currently aware of facts or circumstances which would require the Company to amend or restate any such financial statements, in each case, in order for any of such financials statements to be in compliance with GAAP and the rules and regulations of the Commission. The Company has not been informed by its independent accountants that they recommend that the Company amend or restate any of the financial statements included in the Commission Documents or that there is any need for the Company to amend or restate any such financial statements. (iii) The Company and Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to Company assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms. Since the date of the IPO Registration Statement, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially adversely affected, or is reasonably likely to materially adversely affect, the internal control over financial reporting of the Company and its Subsidiaries. (iv) The Company has timely filed with the Commission and made available via XXXXX all certifications and statements required by (a) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (b) 18 U.S.C. Section 2.4 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company and each Subsidiary is in compliance in all material respects with the provisions of SOXA applicable to it as of the date of this Agreement. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Commission Documents and other public disclosure documents. (v) Deloitte & Touche LLP, contains any untrue whose report on the consolidated balance sheet of the Company as of December 31, 2022, the related statement of a material fact operations, stockholders’ equity (deficit), and cash flows for the year then ended, and the related notes, is filed with the Commission as part of the Form S-1, are and, during the periods covered by their report, were independent public accountants within the meaning of the Securities Act and the Public Company Accounting Oversight Board (United States). To the Company’s knowledge, Deloitte & Touche LLP is not in violation of the auditor independence requirements of SOXA with respect to the Company. (vi) There is, and during the past twelve (12) months there has been, no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s directors or omits to state any material fact necessary in order to make the statements thereinofficers, in their capacities as such, to comply in all material respects with any applicable provisions of SOXA and the light rules and regulations promulgated thereunder. Each of the circumstance under which they are principal executive officer and the principal financial officer of the Company (or were madeeach former principal executive officer of the Company and each former principal financial officer of the Company as applicable) has made all certifications required by Sections 302 and 906 of SOXA with respect to all periodic reports required to be filed by it with the Commission during the past twelve (12) months. For purposes of the preceding sentence, not misleading“principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Exchange Act Rules 13a-15 and 15d-15.

Commission Documents, Financial Statements. The (a) Except as disclosed in the Commission Documents, the Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2010 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2010 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the Commission. (d) PricewaterhouseCoopers LLP, who have expressed their opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Commission DocumentsRegistration Statement and the Prospectus are, includingwith respect to the Company, without limitation, independent public accountants as required by the information referred to in Section 2.4 Securities Act and is an independent registered public accounting firm within the meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. (a) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and since January 1, 2005 the Company is subject 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 and(all of the foregoing, except including filings incorporated by reference therein, being referred to herein as set forth the “Commission Documents”). Except as previously disclosed to the Investor in writing, since January 1, 2005 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 Schedule 3.11, the NASDAQ Global Market. The Company has made available to the Investor true and complete copies of the Commission Documents filed with the Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7since January 1, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or and prior to the Closing Date (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 the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to filetransactions contemplated by this Agreement. As of its date, a the Company’s Annual Report on Form 810-K after for the Closing. Each SEC Documentyear ended December 31, as of the date of the filing thereof with the Commission, 2006 complied in all material respects with the requirements of the Securities Exchange Act or Exchange Act, as applicable, and the rules and regulations of the Commission promulgated thereunder applicable to such document, and, as of the date of such filing (or if amended or superseded by a filing prior its date, after giving effect to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits information disclosed and schedules thereto and documents incorporated by reference therein) , to the Company’s Knowledge such Annual Report on Form 10-K did not contain an 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, to the Company’s Knowledge the financial statements statements, together with the related notes and schedules thereto, of the Company included in the SEC Commission Documents filed with the Commission since January 1, 2005 complied as to form and substance in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules thereto, have been prepared in accordance with GAAP consistently generally accepted accounting principles (“GAAP”) applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided Each Commission Document to be filed with the Commission after the Closing Date and incorporated by reference in the Registration Statement and Prospectus, when such document becomes effective or on behalf is filed with the Commission, as the case may be, shall comply in all material respects with the requirements of the Company Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to the Purchasers which is it, and shall not included in the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstance circumstances under which they are or were made, not misleading. (b) The Company has timely filed with the Commission and made available to the Investor via EXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s filings with the Commission and other public disclosure documents. As used in this Section 4.6(b), the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the Commission.

Commission Documents, Financial Statements. The Company is subject has timely filed all Commission Documents (giving effect to all permissible extensions of the reporting requirements of due date therefor, including those provided by Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”Securities Exchange Act Release No. 34-88465). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2018 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2018 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the date of such its filing (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing)date, such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied when they were filed as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements have been statements, together with the related notes and schedules, were prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto), or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf The Investor acknowledges that (i) the notes to the financial statements contained in the Commission Documents state that there is substantial doubt about the ability of the Company to continue as a going concern and (ii). the Purchasers which is not included Company has advised the Investor that the Company requires substantial additional capital, in addition to the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements thereinPurchase Price and that, in the light of event that the circumstance under which they are Company cannot raise such capital, it may have to curtail its operations or were madecould fail. The Investor further acknowledges that it has consider these factors, not misleadingtogether with others that it has deemed relevant, and after so considering, has determined to enter into this Agreement.

Commission Documents, Financial Statements. The Common Stock of the Company is subject registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Company has 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 andAct. At the times of their respective filings, except as set forth on Schedule 3.11, has filed with all of the Commission all aforementioned reports, schedules, registration forms, statements and definitive proxy statements that the Company was other documents required to file be filed by it with the Commission on and after October 7, 2005 (collectively, the “SEC Commission Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or and the Exchange Act, as applicable, Act and the rules and regulations promulgated thereunder and, as of the date of such filing (or if amended or superseded by a filing prior to the date of this AgreementCommission promulgated thereunder, then on the date of such filing), such SEC Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents Each registration statement and any amendment thereto filed by the Company during the two years preceding the date hereof pursuant to the Securities Act and the rules and regulations thereunder, as of the date such statement or amendment became effective, complied as to form in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein not misleading; and each prospectus filed pursuant to Rule 424(b) under the Securities Act, as exhibits of its issue date and as of the closing of any sale of securities pursuant thereto did not contain any untrue statement of a material fact or omit to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not state any material fact required to be reflected stated therein or necessary in order to make the statements made therein, in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition light of the Company and its Subsidiaries taken as a wholecircumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Commission Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect theretoCommission. Such financial statements have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or year-end adjustments or may be condensed or summary statements) ), and fairly present in all material respects the financial position of the Company and its Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

Commission Documents, Financial Statements. (a) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and since May 1, 2007 the Company is subject 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 pursuant to Section 13(a) or 15(d) of the Exchange Act and(all of the foregoing, except including filings incorporated by reference therein, being referred to herein as set forth the “Commission Documents”). Except as previously disclosed to the Investor in writing, since May 1, 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 Schedule 3.11, the NASDAQ Global Market. The Company has made available (including through the Commission’s XXXXX filing system) to the Investor true and complete copies of the Commission Documents filed with the Commission all reportssince January 1, schedules, registration statements 2007 and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (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 the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to filetransactions contemplated by this Agreement. As of its date, a the Company’s Annual Report on Form 810-K after for the Closing. Each SEC Documentyear ended December 31, as of the date of the filing thereof with the Commission, 2007 complied in all material respects with the requirements of the Securities Exchange Act or Exchange Act, as applicable, and the rules and regulations of the Commission promulgated thereunder applicable to such document, and, as of the date of such filing (or if amended or superseded by a filing prior its date, after giving effect to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits information disclosed and schedules thereto and documents incorporated by reference therein) , to the Company’s Knowledge such Annual Report on Form 10-K did not contain an 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, to the Company’s Knowledge the financial statements statements, together with the related notes and schedules thereto, of the Company included in the SEC Commission Documents filed with the Commission since January 1, 2007 complied as to form and substance in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules thereto, have been prepared in accordance with GAAP consistently generally accepted accounting principles (“GAAP”) applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (b) The Company has timely filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act. As used in this Section 4.6(b), the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleadingCommission.

Commission Documents, Financial Statements. The (a) Except for the 2010 Form 10-K, the Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2010 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2010 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as the case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. The Company has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the Commission Documents have been filed with or furnished to the Commission as requiredof the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. Except Other than as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”)Schedule, there are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has no liabilities, contingent not issued any stop order or otherwise, other than liabilities incurred in order suspending the ordinary course effectiveness of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to normal year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the Purchasers which is not included date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; and, except as set forth in the Commission Documents, including, without limitationsuch controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information referred is furnished, supplied or otherwise made available to in Section 2.4 of this Agreementthe Commission. (d) KPMG LLP and Deloitte & Touche LLP, contains any untrue statement of a material fact who shall issue their consents that their reports be included or omits to state any material fact necessary in order to make the statements therein, incorporated by reference in the light Registration Statement and the Prospectus, are, with respect to the Company, independent public accountants as required by the Securities Act and independent registered public accounting firms within the meaning of SOXA as required by the rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. (a) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and since November 7, 2007 the Company is subject 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 and(all of the foregoing, except including filings incorporated by reference therein, being referred to herein as set forth the “Commission Documents”). Except as previously disclosed to the Investor in writing, since November 7, 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 Schedule 3.11, the NASDAQ Global Market. The Company has made available to the Investor true and complete copies of the Commission Documents filed with the Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October since November 7, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or 2007 and prior to the Closing Date (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 the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to filetransactions contemplated by this Agreement. As of its date, a the Company’s Annual Report on Form 810-K after for the Closing. Each SEC Documentyear ended December 31, as of the date of the filing thereof with the Commission, 2006 complied in all material respects with the requirements of the Securities Exchange Act or Exchange Act, as applicable, and the rules and regulations of the Commission promulgated thereunder applicable to such document, and, as of the date of such filing (or if amended or superseded by a filing prior its date, after giving effect to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits information disclosed and schedules thereto and documents incorporated by reference therein) , to the Company’s Knowledge such Annual Report on Form 10-K did not contain an 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, to the Company’s Knowledge the financial statements statements, together with the related notes and schedules thereto, of the Company included in the SEC Commission Documents filed with the Commission since November 7, 2007 complied as to form and substance in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules thereto, have been prepared in accordance with GAAP consistently generally accepted accounting principles (“GAAP”) applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (b) The Company has timely filed with the Commission or made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its subsidiaries is made known on a timely basis to the Purchasers which is not included in individuals responsible for the timely and accurate preparation of the Company’s filings with the Commission Documents, including, without limitationand other public disclosure documents. As used in this Section 4.6(b), the term “file” shall be broadly construed to include any manner in which a document or information referred is furnished, supplied or otherwise made available to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleadingCommission.

Commission Documents, Financial Statements. The Common Stock is currently registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended the “Exchange Act”), and the Company is subject has 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 and, except (all of the foregoing including filings incorporated by reference therein being referred to herein as set forth on Schedule 3.11, has filed with the Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Commission Documents”). At the request of such Purchaser, the Company has delivered or made available to each of the Purchasers true and complete copies of the Commission Documents. The Company is has not aware of any event occurring or expected to occur on or prior provided to the Closing Date (Purchasers any material non-public information or other information which, according to applicable law, rule or regulation, was required to have been disclosed publicly by the Company but which has not been so disclosed, other than the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to filetransactions contemplated by this Agreement. At the times of their respective filings, a the Form 10-KSB and the Form 10-QSBs and the current report on Form 8-K that is required to be and shall be filed by the Company within four business days after the Closing. Each SEC DocumentClosing Date to disclose the transactions contemplated hereby and under the other Transaction Documents and the transactions contemplated by the Share Exchange Agreement and the Restructuring Agreements (as defined in Section 2.1(gg) hereof) (the “Form 8-K”), as complied and, in the case of the date of the filing thereof with the CommissionForm 8-K, complied will comply in all material respects with the requirements of the Securities Exchange Act or Exchange Act, as applicable, and the rules and regulations of the Commission promulgated thereunder and other federal, state and local laws, rules and regulations applicable to such documents, and, as of respective dates, neither the date Form 10-KSB nor the Form 10-QSBs contained or, in the case of such filing (or if amended or superseded by a filing prior to the date of this AgreementForm 8-K, then on the date of such filing), such SEC Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an any untrue statement of a material fact or omit 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the The financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with GAAP consistently United States generally accepted accounting principles (“GAAP”) applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf The Sunway Financial Statements (as defined in Section 4.2(t) hereof) comply in all material respects with applicable accounting requirements and the rules and regulations of the Company to Commission with respect thereto as in effect at the Purchasers which is not included time of filing. The Sunway Financial Statements have been prepared in accordance with GAAP applied on a consistent basis during the Commission Documents, including, without limitationperiods involved and fairly present in all material respects, the information referred to financial of Sunway has defined in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light 4.2(t) hereof and its subsidiaries as of the circumstance under which they are or were made, not misleadingdates thereof and the results of operations and cash flows for the periods then ended.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the reporting requirements Investor via XXXXX or otherwise true and complete copies of the Exchange Act and, except as set forth on Schedule 3.11, has Commission Documents filed with or furnished to the Commission all reportsSEC prior to the Commitment Closing Date (including, scheduleswithout limitation, registration statements and definitive proxy statements that the 2009 Form 10-K). No Subsidiary of the Company was is required to file or furnish any report, schedule, registration, form, statement, information or other document with the SEC. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Commitment Closing Date (other than including, without limitation, the transactions effected hereby2009 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementCommitment Closing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the SEC, on the date it is declared effective by the SEC, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement, when taken together, on its date, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the SEC Documents have been after the Commitment Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the SEC and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence in the Company’s current management’s possession that were received by the Company from the SEC relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition SEC as of the Commitment Closing Date, together with all written responses of the Company thereto. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the SEC. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission SEC and all other applicable rules and regulations with respect theretothereto as may be subject to any applicable out of period adjustments disclosed in the Commission Documents. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to customary year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the SEC and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“ SOXA ”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.3(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the SEC. (d) Each member, employee or agent of Xxxxxx & Xxxxxx, PC who shall express an opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Commission DocumentsRegistration Statement and the Prospectus is, includingwith respect to the Company, without limitationan independent public accountant as required by the Securities Act and to the company’s Knowledge Xxxxxx & Xxxxxx, PC is an independent registered public accounting firm within the information referred to in Section 2.4 meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (including, without limitation, the 2009 Form 10-K), other than the transactions effected hereby) that would require the filing of, or with respect to which documents filed under confidential treatment requests. No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2009 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public The Registration Statement, on XXXXX at least five (5) Business Days prior to the date of this Agreement (it is filed with the “Disclosure Documents”)Commission, on the Company has no liabilitiesdate it is declared effective by the Commission, contingent or otherwiseon each Fixed Request Exercise Date and on each Settlement Date, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form shall comply in all material respects with applicable accounting the requirements and the published rules and regulations of the Commission with respect thereto. Such financial statements have been prepared in accordance with GAAP consistently applied at the times and during the periods involved Securities Act (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, Rule 415 under the information referred to in Section 2.4 of this Agreement, contains Securities Act) and shall not contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). The Prospectus and each Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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 the light of the circumstance circumstances under which they are or were made, not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as the case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. The Company has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the Commission Documents filed with or furnished to the Commission as of the Closing Date, together with all written responses of the Company thereto. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act.

Commission Documents, Financial Statements. The Company’s Common Stock is registered pursuant to Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and during the past 12 months, the Company is subject 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 and(all of the foregoing, except including filings incorporated by reference therein, being referred to herein as set forth on Schedule 3.11, has filed with the Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Commission Documents”). The Company’s Common Stock is currently listed on the NASDAQ Market. The Company is not aware in violation of the listing requirements of the NASDAQ Market and has no knowledge of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected hereby) facts that would require reasonably lead to delisting or suspension of its Common Stock from the filing ofNASDAQ Market in the foreseeable future. As of its date, or with respect to which each Commission Document filed within the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, past 12 months complied in all material respects with the requirements of the Securities Exchange Act or Exchange Act, as applicable, and the rules and regulations of the Commission promulgated thereunder applicable to such document, and, as of the date of such filing (or if amended or superseded by a filing prior its date, after giving effect to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits information disclosed and schedules thereto and documents incorporated by reference therein) did not contain an , no such Commission Document within the past 12 months contained any untrue statement of a material fact or omit 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the financial statements of the Company included in the SEC Commission Documents filed with the Commission during the past 12 months complied as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim financial statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

Commission Documents, Financial Statements. The (a) Except as disclosed in the Disclosure Schedule, the Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2009 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2009 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the Purchasers which is not included date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; and, except as set forth in the Commission Documents, including, without limitationsuch controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information referred is furnished, supplied or otherwise made available to in Section 2.4 of this Agreementthe Commission. (d) Ernst & Young LLP, contains any untrue statement of a material fact who shall express their opinion on the audited financial statements and related schedules to be included or omits to state any material fact necessary in order to make the statements therein, incorporated by reference in the light Registration Statement and the Prospectus are, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. (a) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and since January 1, 2005 the Company is subject 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 and(all of the foregoing, except including filings incorporated by reference therein, being referred to herein as set forth the “Commission Documents”). Except as previously disclosed to the Investor in writing, since January 1, 2005 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 Schedule 3.11the NASDAQ Capital Market. To the extent not available on the Commission’s XXXXX filing system, the Company has made available to the Investor true and complete copies of the Commission Documents filed with the Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7since January 1, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or and prior to the Closing Date (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 the transactions effected hereby) that would require the filing of, or with respect to the transactions contemplated by this Agreement and other than with respect to information related to the fiscal year and quarter ended December 31, 2007, which will be included in the Company intends to file, a Company’s Annual Report on Form 810-K after for the Closing. Each SEC Documentfiscal year ended December 31, as of the date of the filing thereof 2007, which need not be filed with the CommissionCommission prior to March 31, 2008. As of its date, the Company’s Annual Report on Form 10-K for the year ended December 31, 2006 complied in all material respects with the requirements of the Securities Exchange Act or Exchange Act, as applicable, and the rules and regulations of the Commission promulgated thereunder applicable to such document, and, as of the date of such filing (or if amended or superseded by a filing prior its date, after giving effect to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits information disclosed and schedules thereto and documents incorporated by reference therein) , to the Company’s Knowledge such Annual Report on Form 10-K did not contain an 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, to the Company’s Knowledge the financial statements statements, together with the related notes and schedules thereto, of the Company included in the SEC Commission Documents filed with the Commission since January 1, 2005 complied as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules thereto, have been prepared in accordance with GAAP consistently generally accepted accounting principles (“GAAP”) applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (b) The Company has timely filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a- 14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Company Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to the Purchasers which is not included in the all relevant Commission Documents, including, without limitation, . The Company is in compliance in all material respects with the information referred provisions of SOXA applicable to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light it as of the circumstance date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under which they are or were made, not misleadingthe Exchange Act.

Commission Documents, Financial Statements. Default Outline · A#1886 " \l 3 (a) The Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2012 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2012 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public The Registration Statement, on XXXXX at least five (5) Business Days prior to the date of this Agreement (it is filed with the “Disclosure Documents”)Commission, on the Company has no liabilitiesdate it is declared effective by the Commission, contingent or otherwiseon each Draw Down Exercise Date and on each Settlement Date, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form shall comply in all material respects with applicable accounting the requirements and the published rules and regulations of the Commission with respect thereto. Such financial statements have been prepared in accordance with GAAP consistently applied at the times and during the periods involved Securities Act (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, Rule 415 under the information referred to in Section 2.4 of this Agreement, contains Securities Act) and shall not contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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 the light of the circumstance circumstances under which they are or were made, not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as the case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. The Company has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the Commission Documents filed with or furnished to the Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the reporting requirements Investor via XXXXX or otherwise true and complete copies of the Exchange Act and, except as set forth on Schedule 3.11, has Commission Documents filed with or furnished to the Commission all reportsSEC prior to the Commitment Closing Date (including, scheduleswithout limitation, registration statements and definitive proxy statements that the 2009 Form 10-K). No Subsidiary of the Company was is required to file or furnish any report, schedule, registration, form, statement, information or other document with the SEC. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Commitment Closing Date (other than including, without limitation, the transactions effected hereby2009 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementCommitment Closing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the SEC, on the date it is declared effective by the SEC, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement, when taken together, on its date, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the SEC Documents have been after the Commitment Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the SEC and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the SEC relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition SEC as of the Commitment Closing Date, together with all written responses of the Company thereto. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the SEC. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission SEC and all other applicable rules and regulations with respect theretothereto as may be subject to any applicable out of period adjustments disclosed in the Commission Documents. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to customary year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the SEC and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“ SOXA ”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.3(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the SEC. (d) Xxxxx Accounting Group P.C., (the “Accounting Firm”), who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Commission DocumentsRegistration Statement and the Prospectus are, includingwith respect to the Company, without limitationindependent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. By not later than the Qualification Date, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of Company shall replace the Xxxxx Accounting Group P.C. as the Accounting Firm with a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleadingnew an accounting firm that is a Qualified Auditor.

Commission Documents, Financial Statements. (a) The Company Common Stock is subject registered pursuant to the reporting requirements Section 12(b) or 12(g) of the Exchange Act and, except as set forth on Schedule 3.11disclosed in the Commission Documents, as of the Effective Date the Company had timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the Investor via XXXXX true and complete copies of the Commission Documents filed with the Commission prior to the Effective Date (including, without limitation, the 2005 Form 10-K) and has delivered or made available to the Investor via XXXXX true and complete copies of all reportsof the Commission Documents heretofore incorporated by reference in the Registration Statement and the Prospectus. The Company has not provided to the Investor any information which, schedulesaccording to applicable law, registration statements and definitive proxy statements that the Company rule or regulation, was required to file 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 its filing date, each Commission Document filed with the Commission on and after October 7incorporated by reference in the Registration Statement and the Prospectus (including, 2005 (collectivelywithout limitation, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected hereby2005 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the date of such its filing (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing)date, such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents Each Commission Document to be filed with the Commission after the Effective Date and incorporated by reference in the Registration Statement, the Prospectus and any Prospectus Supplement required to be filed as exhibits pursuant to Sections 1.4 and 5.9 hereof during the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to Investment Period (including, without limitation, the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”Current Report), when such document becomes effective or is filed with the Company has no liabilitiesCommission, contingent as the case may be, shall comply in all material respects with the requirements of the Securities Act or otherwisethe Exchange Act, as applicable, and other than liabilities incurred in the ordinary course federal, state and local laws, rules and regulations applicable to it, and shall not contain any untrue statement of business which, under GAAP, are not a material fact or omit to state a material fact required to be reflected stated therein or necessary in order to make the financial statements included therein, in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition light of the Company circumstances under which they were made, not misleading. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present present, subject to normal year-end adjustments, in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the Commission and made available to the Investor via XXXXX all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the Purchasers which is not included date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; except as disclosed in the Commission Documents, including, without limitationsuch controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 4.6(c), the term “file” shall be broadly construed to include any manner in which a document or information referred is furnished, supplied or otherwise made available to in Section 2.4 of this Agreementthe Commission. (d) Ernst & Young LLP, contains any untrue statement of a material fact who have expressed their opinions on the audited financial statements and related schedules included or omits to state any material fact necessary in order to make the statements therein, incorporated by reference in the light Registration Statement and the Base Prospectus is, with respect to the Company, an independent registered public accounting firm as required by the rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2013 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2013 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). (c) The Company has filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. No The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information provided is furnished, supplied or otherwise made available to the Commission. (d) PricewaterhouseCoopers LLP, who have expressed their opinion on the audited financial statements and related schedules to be included or incorporated by or on behalf reference in the Registration Statement and the Prospectus are, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. PricewaterhouseCoopers LLP has not been engaged by the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to perform any “prohibited activities” (as defined in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light 10A of the circumstance under which they are or were made, not misleadingExchange Act).

Commission Documents, Financial Statements. The Company is subject (a) Omeros has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. Omeros has delivered or made available to Vulcan, via XXXXX or otherwise, true and complete copies of the Commission Documents filed with or furnished to the reporting requirements Commission prior to the Closing Date. No Subsidiary of the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Commission all reports, schedules, registration statements and definitive proxy statements that the Company was Omeros is required to file or furnish any report, schedule, registration, form, statement, information or other document with the Commission. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or Commission prior to the Closing Date (other than the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and Omeros has delivered or made available to the public on Vulcan, via XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred true and complete copies of all comment letters and substantive correspondence received by Omeros from the Commission relating to the Commission Documents filed with or furnished to the Commission as of the Closing Date, together with all written responses of Omeros thereto in the ordinary course form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by Omeros from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of business whichany registration statement filed by Omeros under the Securities Act or the Exchange Act. (b) The financial statements, under GAAPtogether with the related notes and schedules, are not required to be reflected in the financial statements of Omeros included in the Disclosure Commission Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the financial statements of the Company included in the SEC Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company Omeros and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the reporting requirements Investor via EXXXX or otherwise true and complete copies of the Exchange Act and, except as set forth on Schedule 3.11, has Commission Documents filed with or furnished to the Commission all reportsSEC prior to the Commitment Closing Date (including, scheduleswithout limitation, registration statements and definitive proxy statements that the 2010 Form 10-K). No Subsidiary of the Company was is required to file or furnish any report, schedule, registration, form, statement, information or other document with the SEC. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Commitment Closing Date (other than including, without limitation, the transactions effected hereby2010 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementCommitment Closing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the SEC, on the date it is declared effective by the SEC, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement, when taken together, on its date, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the SEC Documents have been after the Commitment Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the SEC and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on XXXXX at least five (5) Business Days prior Investor via EXXXX or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the SEC relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition SEC as of the Commitment Closing Date, together with all written responses of the Company thereto. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the SEC. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission SEC and all other applicable rules and regulations with respect theretothereto as may be subject to any applicable out of period adjustments disclosed in the Commission Documents. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to customary year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the SEC and made available to the Investor via EXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (“ SOXA ”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.3(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the SEC. (d) Mxxx, Kxxxxxx & Associates (the “Accounting Firm”), who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Commission DocumentsRegistration Statement and the Prospectus are, includingwith respect to the Company, without limitation, independent public accountants as required by the information referred to in Section 2.4 Securities Act and is an independent registered public accounting firm within the meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents for the twelve months preceding the date of this Agreement. The Company has made available via XXXXX true and complete copies of the Commission Documents filed with or furnished to the reporting requirements Commission prior to the Commencement Date (including, without limitation, the 2019 Form 10-K) and has made available via XXXXX true and complete copies of all of the Exchange Act andCommission Documents heretofore incorporated by reference in the Registration Statement and the Prospectus. No Subsidiary of the Company is required to file or furnish any report, except as set forth on Schedule 3.11schedule, has filed registration, form, statement, information or other document with the Commission all reportsCommission. The Company has not provided to the Investor any information which, schedulesaccording to applicable law, registration statements and definitive proxy statements that the Company rule or regulation, was required to file with have been disclosed publicly by the Commission on and after October 7Company but which has not been so disclosed, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected hereby) that would require the filing of, or with respect to which the Company intends transactions contemplated by this Agreement. As of its filing date, each Commission Document filed with or furnished to filethe Commission and incorporated by reference in the Registration Statement and the Prospectus (including, a without limitation, the 2019 Form 810-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementCommencement Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents Each Commission Document to be filed with or furnished to the Commission after the Commencement Date and incorporated by reference in the Registration Statement, the Prospectus and any Prospectus Supplement required to be filed as exhibits pursuant to Section 1.4 during the Investment Period (including, without limitation, the Current Report), when such document becomes effective or is filed with or furnished to the SEC Documents have been filed Commission and, if applicable, when such document becomes effective, as required. Except the case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as set forth in SEC Documents filed applicable, and available other federal, state and local laws, rules and regulations applicable to the public on XXXXX at least five (5) Business Days prior it, and shall not contain any untrue statement of a material fact or omit to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not state a material fact required to be reflected stated therein or necessary in order to make the financial statements included therein, in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition light of the circumstances under which they were made, not misleading. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission with respect theretoCommission. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof indicated and the results of its operations and cash flows for the periods then ended indicated (subject, in the case of unaudited statements, to normal year-end audit adjustments). (c) The Company has timely filed with the Commission and made available via XXXXX all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. No The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 4.6(c), the term “file” shall be broadly construed to include any manner in which a document or information provided by is furnished, supplied or otherwise made available to the Commission. (d) Deloitte & Touche LLP, who have expressed their opinions on behalf the audited consolidated financial statements of the Company and related schedules as of December 31, 2019, and for the year ended December 31, 2019, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2019, and Xxxxxx LLC, who have expressed their opinions on the audited consolidated financial statements of the Company and related schedules as of December 31, 2018, and for the year ended December 31, 2018, in each case included or incorporated by reference in the Registration Statement and the Base Prospectus are, with respect to the Purchasers which Company, independent public accountants as required by the Securities Act and to the Knowledge of the Company each is not an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. Neither Deloitte & Touche LLP nor Xxxxxx LLC has been engaged by the Company to perform any “prohibited activities” (as defined in Section 10A of the Exchange Act). (e) The section entitled “Critical Accounting Policies” included or incorporated by reference in the Commission Documents, including, without limitation, Registration Statement (and any post-effective amendment thereto) and the information referred to Prospectus shall accurately describe in Section 2.4 of this Agreement, contains any untrue statement of a all material fact or omits to state any material fact necessary in order to make respects (i) the statements therein, accounting policies that the Company believes are the most important in the light portrayal of the circumstance Company’s financial condition and results of operations and that require management’s most difficult, subjective or complex judgments (“Critical Accounting Policies”); (ii) the judgments and uncertainties affecting the application of Critical Accounting Policies; and (iii) the likelihood that materially different amounts would be reported under which they are different conditions or were madeusing different assumptions, not misleadingand an explanation thereof.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the reporting requirements Investor via XXXXX or otherwise true and complete copies of the Exchange Act and, except as set forth on Schedule 3.11, has Commission Documents filed with or furnished to the Commission all reportsSEC prior to the Commitment Closing Date (including, scheduleswithout limitation, registration statements and definitive proxy statements that the 2009 Form 10-K). No Subsidiary of the Company was is required to file or furnish any report, schedule, registration, form, statement, information or other document with the SEC. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Commitment Closing Date (other than including, without limitation, the transactions effected hereby2009 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementCommitment Closing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the SEC, on the date it is declared effective by the SEC, on each Put Date and on each Put Tranche Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement, when taken together, on its date, on each Put Date and on each Put Tranche Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the SEC Documents have been after the Commitment Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the SEC and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the SEC relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition SEC as of the Commitment Closing Date, together with all written responses of the Company thereto. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the SEC. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission SEC and all other applicable rules and regulations with respect theretothereto as may be subject to any applicable out of period adjustments disclosed in the Commission Documents. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to customary year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the SEC and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“ SOXA ”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.3(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the SEC. (d) EFP Xxxxxxxxx, LLP, or any other accounting firm retained by the Company, who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Commission DocumentsRegistration Statement and the Prospectus are, includingwith respect to the Company, without limitation, independent public accountants as required by the information referred to in Section 2.4 Securities Act and is an independent registered public accounting firm within the meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. The Company is subject to the reporting requirements of the Exchange Act andAct, except as set forth on Schedule 3.11of the Closing Date, and has filed with the Commission all reports, schedules, registration statements and definitive proxy statements (if any) that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected herebyhereby and related hereto) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or Exchange Act, as applicable, and the rules and regulations promulgated thereunder and, as of the date of such filing (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”)) or as disclosed in the disclosure schedules attached hereto, the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect thereto. Such financial statements have been prepared in accordance with GAAP consistently applied at the times and during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission SEC Documents, including, without limitation, the information referred to in Section 2.4 of this AgreementAgreement and the disclosure schedules attached hereto, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the reporting requirements Investor via XXXXX or otherwise true and complete copies of the Exchange Act and, except as set forth on Schedule 3.11, has Commission Documents filed with or furnished to the Commission all reports, schedules, registration statements and definitive proxy statements that prior to the Closing Date. No Subsidiary of the Company was is required to file or furnish any report, schedule, registration, form, statement, information or other document with the Commission. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or Commission prior to the Closing Date (other than the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission (or becomes effective pursuant to Section 8 of the Securities Act), on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company to maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Purchasers which is not included Exchange Act; Except as set forth in the Commission Documents, including, without limitationsuch controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information referred is furnished, supplied or otherwise made available to the Commission. (d) HJ & Associates, LLC, which shall express its opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Registration Statement and the Prospectus is, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. HJ & Associates, LLC has not been engaged by the Company to perform any “prohibited activities” (as defined in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light 10A of the circumstance under which they are or were made, not misleadingExchange Act).

Commission Documents, Financial Statements. The Except as previously disclosed on the Disclosure Schedule, the Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and since March 31, 2004 the Company is subject 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 and(all of the foregoing, except including filings incorporated by reference therein, being referred to herein as set forth the “Commission Documents”). Except as previously disclosed on Schedule 3.11the Disclosure Schedule, since March 31, 2004 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 National Market. The Company has made available to the Investor, upon request, true and complete copies of the Commission Documents filed with the Commission all reportssince March 31, schedules, registration statements 2004 and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (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 the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to filetransactions contemplated by this Agreement. As of its date, a the Company’s Form 810-K after for the Closing. Each SEC Documentyear ended December 31, as of the date of the filing thereof with the Commission, 2004 complied in all material respects with the requirements of the Securities Exchange Act or Exchange Act, as applicable, and the rules and regulations of the Commission promulgated thereunder applicable to such document, and, as of the date of such filing (or if amended or superseded by a filing prior its date, after giving effect to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits information disclosed and schedules thereto and documents incorporated by reference therein) , such Form 10-K did not contain an 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the financial statements of the Company included in the SEC Commission Documents filed with the Commission since March 31, 2004 complied as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with GAAP consistently generally accepted accounting principles (“GAAP”) applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

Commission Documents, Financial Statements. (a) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and since January 1, 2007 the Company is subject 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 and(all of the foregoing, except including filings incorporated by reference therein, being referred to herein as set forth the “Commission Documents”). Except as previously disclosed to the Investor in writing, since January 1, 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 Schedule 3.11, the NASDAQ Global Market. The Company has made available to the Investor true and complete copies of the Commission Documents filed with the Commission all reportssince January 1, schedules, registration statements 2007 and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (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 the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to filetransactions contemplated by this Agreement. As of its date, a the Company’s Annual Report on Form 810-K after for the Closing. Each SEC Documentyear ended December 31, as of the date of the filing thereof with the Commission, 2006 complied in all material respects with the requirements of the Securities Exchange Act or Exchange Act, as applicable, and the rules and regulations of the Commission promulgated thereunder applicable to such document, and, as of the date of such filing (or if amended or superseded by a filing prior its date, after giving effect to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits information disclosed and schedules thereto and documents incorporated by reference therein) , to the Company’s Knowledge such Annual Report on Form 10-K did not contain an 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, to the Company’s Knowledge the financial statements statements, together with the related notes and schedules thereto, of the Company included in the SEC Commission Documents filed with the Commission since January 1, 2007 complied as to form and substance in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules thereto, have been prepared in accordance with GAAP consistently generally accepted accounting principles (“GAAP”) applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (b) The Company has timely filed with the Commission and made available to the Investor via EXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its subsidiaries is made known on a timely basis to the Purchasers which is not included in individuals responsible for the timely and accurate preparation of the Company’s filings with the Commission Documents, including, without limitationand other public disclosure documents. As used in this Section 4.6(b), the term “file” shall be broadly construed to include any manner in which a document or information referred is furnished, supplied or otherwise made available to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleadingCommission.

Commission Documents, Financial Statements. The (a) Except as disclosed in the Disclosure Schedule, the Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via EXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2011 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2011 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on XXXXX at least five (5) Business Days prior Investor via EXXXX or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via EXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the Commission and made available to the Investor via EXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the Commission. (d) McGladrey LLP, who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Commission DocumentsRegistration Statement and the Prospectus are, includingwith respect to the Company, without limitation, independent public accountants as required by the information referred to in Section 2.4 Securities Act and is an independent registered public accounting firm within the meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act and except as previously disclosed to the Investor in writing or disclosed in the Commission Documents, the Company is subject 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 and(all of the foregoing, except including filings incorporated by reference therein, being referred to herein as set forth the "COMMISSION DOCUMENTS") other than reports on Schedule 3.11Form 8-K for which the Commission has granted a safe harbor with respect to the timing of disclosure of such information required by Form 8-K. Except as previously disclosed to the Investor in writing, 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 National Market or another Principal Market. The Company has made available to the Investor, or otherwise made available on its website, true and complete copies of the Commission Documents filed with the Commission all reportssince December 31, schedules, registration statements 2002 and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (Date. Except as disclosed to the Investor in writing prior to the date hereof, 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 the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to filetransactions contemplated by this Agreement. As of its date, a the Company's Form 810-K after for the Closing. Each SEC Documentfiscal year ended September 30, 2003 filed on December 29, 2003, as of the date of the filing thereof with the Commissionamended by Amendment No. 1 to Form 10-K filed on January 28, 2004, complied in all material respects with the requirements of the Securities Exchange Act or Exchange Act, as applicable, and the rules and regulations of the Commission promulgated thereunder applicable to such document, and, as of the date of such filing (or if amended or superseded by a filing prior January 28, 2004, after giving effect to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits information disclosed and schedules thereto and documents incorporated by reference therein) , such Form 10-K did not contain an 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. All documents required to be filed as exhibits to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the financial statements of the Company included in the SEC Commission Documents filed with the Commission since December 31, 2002, as such Commission Documents have been amended prior to the Closing, complied as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with GAAP consistently generally accepted accounting principles ("GAAP") applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2012 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission (or becomes effective pursuant to Section 8 of the Securities Act), on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). (c) The Company has timely filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. No The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information provided is furnished, supplied or otherwise made available to the Commission. (d) Tarvaran, Xxxxxxxx & Company, LLP, who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by or on behalf reference in the Registration Statement and the Prospectus are, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. Tarvaran, Xxxxxxxx & Company, LLP has not been engaged by the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to perform any “prohibited activities” (as defined in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light 10A of the circumstance under which they are or were made, not misleadingExchange Act).

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to each of any event occurring the Investors via XXXXX or expected otherwise true and complete copies of the Commission Documents filed with or furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2012 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2012 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to any Investor furnished to the Company in writing by or on behalf of such Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to the public on XXXXX at least five (5) Business Days prior to the date of this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Draw Down Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the “Disclosure Documents”), the Company has no liabilities, contingent Securities Act) and shall not contain any untrue statement of a material fact or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not omit to state a material fact required to be reflected stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to any Investor furnished to the Company in writing by or on behalf of such Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the financial statements included in Registration Statement, the Disclosure Documents and whichProspectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, individually without limitation, the Current Report), when such document is filed with or in the aggregate, are not material furnished to the consolidated business Commission and, if applicable, when such document becomes effective, as the case may be, shall comply in all material respects with the requirements of the Securities Act or financial condition the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. The Company has delivered or made available to each of the Investors via XXXXX or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the Commission Documents filed with or furnished to the Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). (c) The Company has timely filed with the Commission and made available to each Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. No The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information provided is furnished, supplied or otherwise made available to the Commission. (d) SingerLewak LLP, who shall consent to the inclusion of their opinion on the audited financial statements and related schedules to be included or incorporated by or on behalf reference in the Registration Statement and the Prospectus are, with respect to the Company, independent public accountants as required by the Securities Act and is an independent registered public accounting firm within the meaning of SOXA as required by the rules of the Public Company Accounting Oversight Board. SingerLewak LLP has not been engaged by the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to perform any “prohibited activities” (as defined in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light 10A of the circumstance under which they are or were made, not misleadingExchange Act).

Commission Documents, Financial Statements. (a) The Company Common Stock is subject registered pursuant to the reporting requirements Section 12(b) or 12(g) of the Exchange Act and, except as set forth on Schedule 3.11disclosed in the Commission Documents, as of the Effective Date the Company had timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of the Commission Documents filed with the Commission prior to the Effective Date (including, without limitation, the 2008 Form 10-K) and has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of all reportsof the Commission Documents heretofore incorporated by reference in the Registration Statement and the Prospectus. The Company has not provided to the Investor any information which, schedulesaccording to applicable law, registration statements and definitive proxy statements that rule or regulation, should have been disclosed publicly by the Company was required but which has not been so disclosed, other than with respect to file the transactions contemplated by this Agreement. As of its filing date, each Commission Document filed with the Commission on and after October 7incorporated by reference in the Registration Statement and the Prospectus (including, 2005 (collectivelywithout limitation, the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected hereby2008 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementEffective Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents Each Commission Document to be filed with the Commission after the Effective Date and incorporated by reference in the Registration Statement, the Prospectus and any Prospectus Supplement required to be filed as exhibits pursuant to Sections 1.4 and 5.9 hereof during the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to Investment Period (including, without limitation, the public on XXXXX at least five (5) Business Days prior to the date of this Agreement (the “Disclosure Documents”Current Report), when such document becomes effective or is filed with the Company has no liabilitiesCommission, contingent as the case may be, shall comply in all material respects with the requirements of the Securities Act or otherwisethe Exchange Act, as applicable, and other than liabilities incurred in the ordinary course federal, state and local laws, rules and regulations applicable to it, and shall not contain any untrue statement of business which, under GAAP, are not a material fact or omit to state a material fact required to be reflected stated therein or necessary in order to make the financial statements included therein, in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition light of the Company circumstances under which they were made, not misleading. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to normal year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its Subsidiary as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiary is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 4.6(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the Commission. (d) PricewaterhouseCoopers LLP, who have expressed their opinions on the audited financial statements and related schedules included or incorporated by reference in the Commission DocumentsRegistration Statement and the Base Prospectus are, includingwith respect to the Company, without limitation, independent public accountants as required by the information referred to in Section 2.4 Securities Act and is an independent registered public accounting firm within the meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents. The Company has delivered or made available to the reporting requirements Investor via EXXXX or otherwise true and complete copies of the Exchange Act and, except as set forth on Schedule 3.11, has Commission Documents filed with or furnished to the Commission all reports, schedules, registration statements and definitive proxy statements that SEC prior to the Commitment Closing Date. No Subsidiary of the Company was is required to file or furnish any report, schedule, registration, form, statement, information or other document with the SEC. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Commitment Closing Date (other than the transactions effected hereby) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementCommitment Closing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the SEC, on the date it is declared effective by the SEC, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement, when taken together, on its date, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the SEC Documents have been after the Commitment Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the SEC and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on XXXXX at least five (5) Business Days prior Investor via EXXXX or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the SEC relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition SEC as of the Commitment Closing Date, together with all written responses of the Company thereto. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the SEC. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission SEC and all other applicable rules and regulations with respect theretothereto as may be subject to any applicable out of period adjustments disclosed in the Commission Documents. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to customary year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the SEC and made available to the Investor via EXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (“ SOXA ”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.3(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the SEC. (d) Txxxxx, Sxxxx & Company (the “Accounting Firm”), who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Commission DocumentsRegistration Statement and the Prospectus are, includingwith respect to the Company, without limitation, independent public accountants as required by the information referred to in Section 2.4 Securities Act and is an independent registered public accounting firm within the meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. The (a) Except as disclosed in the Commission Documents, the Company is subject has timely filed (giving effect to the reporting requirements of permissible extensions in accordance with Rule 12b-25 under the Exchange Act and, except as set forth on Schedule 3.11, has filed with the Act) all Commission all reports, schedules, registration statements and definitive proxy statements that the Company was required to file with the Commission on and after October 7, 2005 (collectively, the “SEC Documents”). The Company is not aware has delivered or made available to the Investor via XXXXX or otherwise true and complete copies of any event occurring the Commission Documents filed with or expected furnished to occur on or the Commission prior to the Closing Date (other than including, without limitation, the transactions effected hereby) that would require the filing of, or with respect to which 2009 Form 10-K). No Subsidiary of the Company intends is required to filefile or furnish any report, a Form 8-K after the Closing. Each SEC Documentschedule, as of the date of the filing thereof registration, form, statement, information or other document with the Commission. As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2009 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementClosing Date, then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Fixed Request Exercise Date and on each Settlement Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the SEC Documents have been Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on Investor via XXXXX at least five (5) Business Days prior or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed via XXXXX. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the Commission and made available to the Investor via XXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Purchasers individuals responsible for the timely and accurate preparation of the Company’s Commission filings and other public disclosure documents. As used in this Section 5.6(c), the term “file” shall be broadly construed to include any manner in which a document or information is not furnished, supplied or otherwise made available to the Commission. (d) PricewaterhouseCoopers LLP, who have expressed their opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Commission DocumentsRegistration Statement and the Prospectus are, includingwith respect to the Company, without limitation, independent public accountants as required by the information referred to in Section 2.4 Securities Act and is an independent registered public accounting firm within the meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.

Commission Documents, Financial Statements. (a) The Company Common Stock is subject registered pursuant to Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Since January 1, 2017, Agenus 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, including filings incorporated by reference therein and, except as set forth on Schedule 3.11for the avoidance of doubt, has filed with the Commission all reports, schedules, registration forms, statements and definitive proxy statements that the Company was other documents required to file with be filed following the Commission on and after October 7date hereof, 2005 (collectively, being referred to herein as the “SEC Commission Documents”). The Company Common Stock is currently listed on Nasdaq. Agenus is not aware in violation of the listing requirements of Nasdaq and has no knowledge of any event occurring or expected to occur on or prior to the Closing Date (other than the transactions effected hereby) facts that would require reasonably lead to delisting or suspension of the filing ofCommon Stock from Nasdaq in the foreseeable future. As of its date, or each Commission Document filed since January 1, [******] - Certain confidential information contained in this document, marked by brackets, is filed with respect the Securities and Exchange Commission pursuant to which Rule 24b-2 of the Company intends to file, a Form 8-K after the Closing. Each SEC DocumentSecurities Exchange Act of 1934, as of the date of the filing thereof with the Commission, amended. 2017 complied in all material respects with the requirements of the Securities Exchange Act or Exchange Act, as applicable, and the rules and regulations of the Commission promulgated thereunder applicable to such document, and, as of the date of such filing (or if amended or superseded by a filing prior its date, after giving effect to the date of this Agreement, then on the date of such filing), such SEC Document (including all exhibits information disclosed and schedules thereto and documents incorporated by reference therein) did not contain an , no such Commission Document contained 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. All documents required to be The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed as exhibits to by Agenus under the SEC Documents have been filed as required. Except as set forth in SEC Documents filed and available to Exchange Act or the public on XXXXX at least five Securities Act. (5b) Business Days prior to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material to the consolidated business or financial condition of the Company and its Subsidiaries taken as a whole. As of their respective dates, the financial statements of the Company Agenus included in the SEC Commission Documents filed with the Commission since January 1, 2017 complied as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) ), and fairly present in all material respects the financial position of the Company Agenus as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf of the Company to the Purchasers which is not included in the Commission Documents, including, without limitation, the information referred to in Section 2.4 of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.

Commission Documents, Financial Statements. (a) The Company is subject has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents . The Company has delivered or made available to the reporting requirements Investor via EXXXX or otherwise true and complete copies of the Exchange Act and, except as set forth on Schedule 3.11, has Commission Documents filed with or furnished to the Commission all reportsSEC prior to the Commitment Closing Date (including, scheduleswithout limitation, registration statements and definitive proxy statements that the 2010 Form 10-K). No Subsidiary of the Company was is required to file or furnish any report, schedule, registration, form, statement, information or other document with the SEC. As of its filing date, each Commission on and after October 7, 2005 (collectively, Document filed with or furnished to the “SEC Documents”). The Company is not aware of any event occurring or expected to occur on or prior to the Commitment Closing Date (other than including, without limitation, the transactions effected hereby2010 Form 10-K) that would require the filing of, or with respect to which the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the date of the filing thereof with the Commission, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the other federal, state and local laws, rules and regulations promulgated thereunder applicable to it, and, as of the its filing date of such filing (or or, if amended or superseded by a filing prior to the date of this AgreementCommitment Closing Date , then on the date of such amended or superseded filing), such SEC Commission Document (including all exhibits and schedules thereto and documents incorporated by reference therein) did not contain an 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. All documents The Registration Statement, on the date it is filed with the SEC, on the date it is declared effective by the SEC, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall 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 not misleading, except that this representation and warranty shall not apply to statements in or omissions from the Registration Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). The Prospectus and each Prospectus Supplement required to be filed as exhibits pursuant to this Agreement or the Registration Rights Agreement, when taken together, on its date, on each Put Date and on each Put Closing Date, shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall 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, except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein (which to the Company’s Knowledge are not false or misleading). Each Commission Document (other than the Registration Statement, the Prospectus or any Prospectus Supplement) to be filed with or furnished to the SEC Documents have been after the Commitment Closing Date and incorporated by reference in the Registration Statement, the Prospectus or any Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the SEC and, if applicable, when such document becomes effective, as requiredthe case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it, and shall 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. Except as set forth in SEC Documents filed and The Company has delivered or made available to the public on XXXXX at least five (5) Business Days prior Investor via EXXXX or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the SEC relating to the date of this Agreement (the “Disclosure Documents”), the Company has no liabilities, contingent Commission Documents filed with or otherwise, other than liabilities incurred in the ordinary course of business which, under GAAP, are not required to be reflected in the financial statements included in the Disclosure Documents and which, individually or in the aggregate, are not material furnished to the consolidated business or financial condition SEC as of the Commitment Closing Date, together with all written responses of the Company thereto. There are no outstanding or unresolved comments or undertakings in such comment letters received by the Company from the SEC. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements, together with the related notes and its Subsidiaries taken as a whole. As of their respective datesschedules, the financial statements of the Company included in the SEC Commission Documents complied comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission SEC and all other applicable rules and regulations with respect theretothereto as may be subject to any applicable out of period adjustments disclosed in the Commission Documents. Such financial statements statements, together with the related notes and schedules, have been prepared in accordance with GAAP consistently applied at the times and on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude not include footnotes or may be condensed or summary statements) statements and are subject to customary year-end audit adjustments), and fairly present in all material respects the financial position condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided . (c) The Company has timely filed with the SEC and made available to the Investor via EXXXX or otherwise all certifications and statements required by (x) Rule 13a-14 or on behalf Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (“ SOXA ”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act. As used in this Section 5.3(c), the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the Purchasers which is not SEC. (d) Silberstein Uxxxx, PLLC (the “Accounting Firm”), who shall express their opinion on the audited financial statements and related schedules to be included or incorporated by reference in the Commission DocumentsRegistration Statement and the Prospectus are, includingwith respect to the Company, without limitation, independent public accountants as required by the information referred to in Section 2.4 Securities Act and is an independent registered public accounting firm within the meaning of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make SOXA as required by the statements therein, in the light rules of the circumstance under which they are or were made, not misleadingPublic Company Accounting Oversight Board.