Common use of SEC Filings; Financial Statements; Nasdaq Listing Clause in Contracts

SEC Filings; Financial Statements; Nasdaq Listing. (a) The Annual Report on Form 10-K of the Company for the fiscal year ended February 29, 2004 has been made available to the Purchaser in connection with the offering of the New Securities. All documents of the Company filed with the SEC pursuant to the Exchange Act are referred to herein as the "Exchange Act Reports". The Exchange Act Reports, when they were filed with the SEC, complied in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the SEC thereunder. The Exchange Act Reports did not, as of their respective dates, contain any untrue statement of 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 circumstances under which they were made, not misleading. The Company has timely filed all reports and registration statements and made all filings required to be made with the SEC under the Exchange Act, the Securities Act or the applicable rules and regulations of the SEC thereunder, all of which complied when filed in all material respects with all applicable requirements of the Securities Act and/or the Xxxxxxxx-Xxxxx Act of 2002 (with respect to the provisions of such act required to be complied with at the time such forms, reports and/or documents were required to be filed) and the rules and regulations promulgated thereunder (the "Xxxxxxxx-Xxxxx Act") and the statements contained in or accompanying the Company Annual Report on Form 10-K and Quarterly Reports on Forms 10-Qs in accordance with Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act are true and correct. (b) Without limiting the generality of Section 3.05(a), (i) ZAO PricewaterhouseCoopers Audit has not resigned, or, to the knowledge of the Company, threatened to resign or been dismissed as independent public accountant of the Company as a result of or in connection with any disagreement with the Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, (ii) no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act with respect to any form, report or schedule filed by the Company with the SEC since the enactment of the Xxxxxxxx-Xxxxx Act and (iii) no enforcement action has been initiated against the Company by the SEC relating to disclosures contained in any Company SEC Report. (c) The Company has in place the "disclosure controls and procedures" (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) required in order for the Chief Executive Officer and Chief Financial Officer of the Company to engage in the review and evaluation process mandated by the Exchange Act. The Company's "disclosure controls and procedures" are reasonably designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company's management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such reports. (d) The audited consolidated balance sheets of the Company and its subsidiaries for the fiscal years ended as of February 29, 2004, February 28, 2003 and February 28, 2002 and the related audited consolidated statements of income, retained earnings, stockholders' equity and cash flow of the Company and the Company Subsidiaries together with all related notes and schedules thereto (the "Audited Financial Statements"), the unaudited consolidated balance sheet of the Company and its subsidiaries as of May 31, 2004, and the related unaudited consolidated statements of income, retained earnings, stockholders' equity and cash flow of the Company and its subsidiaries together with all related notes and schedules thereto (the "Interim Financial Statements"), all of which Audited Financial Statements and Interim Financial Statements are contained in the respective Exchange Act Reports, (i) were prepared in accordance with the books of account and other financial records of the Company and its subsidiaries, (ii) present fairly the consolidated financial condition and results of operations of the Company and its subsidiaries as of the dates thereof or for the periods covered thereby, (iii) have been prepared in accordance with US GAAP applied on a basis consistent with the past practices of the Company and (iv) in case of the Interim Financial Statements, include all adjustments (consisting only of normal recurring accruals) that are necessary for a fair presentation of the consolidated financial condition and the results of the operations of the Company as of the dates thereof or for the periods covered thereby. The balance sheet of the Company contained in its Annual Report on Form 10-K for the fiscal year ended February 29, 2004 is hereinafter referred to as the "Company Balance Sheet". (e) The Company is currently eligible to use Form S-3 under the Securities Act for registration of the sale by the Purchaser of the Registrable Securities (as such term is defined in the Registration Rights Agreement), and the Company has filed in the preceding twelve (12) months all reports required to be filed by the Company with the SEC in a timely manner so as to obtain and maintain eligibility to use Form S-3 under the Securities Act for the resale of the Registrable Securities. (f) Set forth in Section 3.05(f) of the Disclosure Schedule is a complete list of all material amendments or modifications, that have not yet been filed with the SEC, to agreements, documents or other instruments that previously had been filed by the Company with the SEC (except as may be required with respect to the Transactions), pursuant to the Securities Act or the Exchange Act. The Company has furnished to the Purchaser a complete and correct copy of all such documents. (g) The Common Stock is listed on the Nasdaq National Market. The Company has no knowledge of any proceedings to revoke such listing. The sales of New Securities and Warrants to the Purchaser in accordance with the terms of this Agreement and the Warrant Agreement will not violate any rules of the Nasdaq National Market or the National Association of Securities Dealers as in effect on the date hereof.

SEC Filings; Financial Statements; Nasdaq Listing. (a) The Annual Report on Form 10-K of the Company for the fiscal year ended February 29, 2004 has been made available to the Purchaser in connection with the offering of the New Securities. All documents of the Company filed with the SEC pursuant to the Exchange Act are referred to herein as the "“Exchange Act Reports"”. The Exchange Act Reports, when they were filed with the SEC, complied in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the SEC thereunder. The Exchange Act Reports did not, as of their respective dates, contain any untrue statement of 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 circumstances under which they were made, not misleading. The Except as set forth under Section 3.05 (a) of the Disclosure Schedule, the Company has timely filed all reports and registration statements and made all filings required to be made with the SEC under the Exchange Act, the Securities Act or the applicable rules and regulations of the SEC thereunder, all of which complied when filed in all material respects with all applicable requirements of the Securities Act and/or and the Xxxxxxxx-Xxxxx Act of 2002 (with respect to the provisions of such act required to be complied with at the time such forms, reports and/or and documents were required to be filed) and the rules and regulations promulgated thereunder (the "“Xxxxxxxx-Xxxxx Act"”) and the statements contained in or accompanying the Company Annual Report on Form 10-K and Quarterly Exchange Act Reports on Forms 10-Qs in accordance with Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act are true and correct. (b) Without limiting the generality of Section 3.05(a), (i) ZAO PricewaterhouseCoopers Audit has not resigned, or, to the knowledge of the Company, threatened to resign or been dismissed as independent public accountant of the Company as a result of or in connection with any disagreement with the Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, (ii) no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act with respect to any form, report or schedule filed by the Company with the SEC since the enactment of the Xxxxxxxx-Xxxxx Act and (iii) no . No enforcement action has been initiated against the Company by the SEC relating to disclosures contained in any Company SEC Reportof the Exchange Act Reports. (b) The Common Stock is listed on the Nasdaq National Market. The sales of New Securities to the Purchasers in accordance with the terms of this Agreement and the Warrant Agreements will not violate any rules of the Nasdaq National Market or the National Association of Securities Dealers as in effect on the date hereof. (c) The Company has in place the "disclosure controls and procedures" (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) required in order for the Chief Executive Officer and Chief Financial Officer of the Company to engage in the review and evaluation process mandated by the Exchange Act. The Company's "disclosure controls and procedures" are reasonably designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company's management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such reports. (d) The audited consolidated balance sheets of the Company and its subsidiaries for the fiscal years year ended as of February 29December 31, 2004, February 28, 2003 and February 28, 2002 2005 and the related audited consolidated statements of income, retained earnings, stockholders' ’ equity and cash flow of the Company and the Company Subsidiaries together with all related notes and schedules thereto (the "“Audited Financial Statements"”), as filed with the unaudited consolidated balance sheet of the Company and its subsidiaries as of May 31, 2004, and the related unaudited consolidated statements of income, retained earnings, stockholders' equity and cash flow of the Company and its subsidiaries together with all related notes and schedules thereto (the "Interim Financial Statements"), all of which Audited Financial Statements and Interim Financial Statements are contained in the respective Exchange Act Reports, Annual Report (i) were prepared in accordance with the books of account and other financial records of the Company and its subsidiaries, (ii) present fairly the consolidated financial condition and results of operations of the Company and its subsidiaries as of the dates thereof or for the periods covered thereby, and (iii) have been prepared in accordance with US GAAP applied on a basis consistent with the past practices of the Company and (iv) in case of the Interim Financial Statements, include all adjustments (consisting only of normal recurring accruals) that are necessary for a fair presentation of the consolidated financial condition and the results of the operations of the Company as of the dates thereof or for the periods covered thereby. The balance sheet of the Company contained in its Annual Report on Form 10-K for the fiscal year ended February 29, 2004 is hereinafter referred to as the "Company Balance Sheet"Company. (e) The Company is currently eligible to use Form S-3 under the Securities Act for registration of the sale by the Purchaser of the Registrable Securities (as such term is defined in the Registration Rights Agreement), and the Company has filed in the preceding twelve (12) months all reports required to be filed by the Company with the SEC in a timely manner so as to obtain and maintain eligibility to use Form S-3 under the Securities Act for the resale of the Registrable Securities. (f) Set forth in Section 3.05(f) of the Disclosure Schedule is a complete list of all material amendments or modifications, that have not yet been filed with the SEC, to agreements, documents or other instruments that previously had been filed by the Company with the SEC (except as may be required with respect to the Transactions), pursuant to the Securities Act or the Exchange Act. The Company has furnished to the Purchaser a complete and correct copy of all such documents. (g) The Common Stock is listed on the Nasdaq National Market. The Company has no knowledge of any proceedings to revoke such listing. The sales of New Securities and Warrants to the Purchaser in accordance with the terms of this Agreement and the Warrant Agreement will not violate any rules of the Nasdaq National Market or the National Association of Securities Dealers as in effect on the date hereof.

SEC Filings; Financial Statements; Nasdaq Listing. (a) The Annual Report on Form 10-K of the Company for the fiscal year ended February 29, 2004 has been made available to the Purchaser in connection with the offering of the New Securities. All documents of the Company filed with the SEC pursuant to the Exchange Act are referred to herein as the "“Exchange Act Reports"”. The Exchange Act Reports, when they were filed with the SEC, complied in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the SEC thereunder. The Exchange Act Reports did not, as of their respective dates, contain any untrue statement of 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 circumstances under which they were made, not misleading. The Except as set forth under Section 3.05 (a) of the Disclosure Schedule, the Company has timely filed all reports and registration statements and made all filings required to be made with the SEC under the Exchange Act, the Securities Act or the applicable rules and regulations of the SEC thereunder, all of which complied when filed in all material respects with all applicable requirements of the Securities Act and/or and the Xxxxxxxx-Xxxxx Act of 2002 (with respect to the provisions of such act required to be complied with at the time such forms, reports and/or and documents were required to be filed) and the rules and regulations promulgated thereunder (the "“Xxxxxxxx-Xxxxx Act"”) and the statements contained in or accompanying the Company Annual Report on Form 10-K and Quarterly Exchange Act Reports on Forms 10-Qs in accordance with Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act are true and correct. (b) Without limiting the generality of Section 3.05(a), (i) ZAO PricewaterhouseCoopers Audit has not resigned, or, to the knowledge of the Company, threatened to resign or been dismissed as independent public accountant of the Company as a result of or in connection with any disagreement with the Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, (ii) no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act with respect to any form, report or schedule filed by the Company with the SEC since the enactment of the Xxxxxxxx-Xxxxx Act and (iii) no . No enforcement action has been initiated against the Company by the SEC relating to disclosures contained in any Company SEC Reportof the Exchange Act Reports. (b) The Common Stock is listed on the Nasdaq Global Market. The sale of New Securities to the Purchasers in accordance with the terms of this Agreement and the Warrant Agreements will not violate any rules of the Nasdaq Global Market or the National Association of Securities Dealers as in effect on the date hereof. (c) The Company has in place the "disclosure controls and procedures" (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) required in order for the Chief Executive Officer and Chief Financial Officer of the Company to engage in the review and evaluation process mandated by the Exchange Act. The Company's "disclosure controls and procedures" are reasonably designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company's management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such reports. (d) The audited consolidated balance sheets of the Company and its subsidiaries for the fiscal years year ended as of February 29December 31, 2004, February 28, 2003 and February 28, 2002 2005 and the related audited consolidated statements of income, retained earnings, stockholders' ’ equity and cash flow of the Company and the Company Subsidiaries together with all related notes and schedules thereto (the "“Audited Financial Statements"”), as filed with the unaudited consolidated balance sheet of the Company and its subsidiaries as of May 31, 2004, and the related unaudited consolidated statements of income, retained earnings, stockholders' equity and cash flow of the Company and its subsidiaries together with all related notes and schedules thereto (the "Interim Financial Statements"), all of which Audited Financial Statements and Interim Financial Statements are contained in the respective Exchange Act Reports, Annual Report (i) were prepared in accordance with the books of account and other financial records of the Company and its subsidiaries, (ii) present fairly the consolidated financial condition and results of operations of the Company and its subsidiaries as of the dates thereof or for the periods covered thereby, and (iii) have been prepared in accordance with US GAAP applied on a basis consistent with the past practices of the Company and (iv) in case of the Interim Financial Statements, include all adjustments (consisting only of normal recurring accruals) that are necessary for a fair presentation of the consolidated financial condition and the results of the operations of the Company as of the dates thereof or for the periods covered thereby. The balance sheet of the Company contained in its Annual Report on Form 10-K for the fiscal year ended February 29, 2004 is hereinafter referred to as the "Company Balance Sheet"Company. (e) The Company is currently eligible to use Form S-3 under the Securities Act for registration of the sale by the Purchaser of the Registrable Securities (as such term is defined in the Registration Rights Agreement), and the Company has filed in the preceding twelve (12) months all reports required to be filed by the Company with the SEC in a timely manner so as to obtain and maintain eligibility to use Form S-3 under the Securities Act for the resale of the Registrable Securities. (f) Set forth in Section 3.05(f) of the Disclosure Schedule is a complete list of all material amendments or modifications, that have not yet been filed with the SEC, to agreements, documents or other instruments that previously had been filed by the Company with the SEC (except as may be required with respect to the Transactions), pursuant to the Securities Act or the Exchange Act. The Company has furnished to the Purchaser a complete and correct copy of all such documents. (g) The Common Stock is listed on the Nasdaq National Market. The Company has no knowledge of any proceedings to revoke such listing. The sales of New Securities and Warrants to the Purchaser in accordance with the terms of this Agreement and the Warrant Agreement will not violate any rules of the Nasdaq National Market or the National Association of Securities Dealers as in effect on the date hereof.

SEC Filings; Financial Statements; Nasdaq Listing. (a) The Annual Report on Form 10-K of the Company for the fiscal year ended February 29, 2004 has been made available to the Purchaser in connection with the offering of the New Securities. All documents of the Company filed with the SEC pursuant to the Exchange Act are referred to herein as the "Exchange Act Reports". The Exchange Act Reports, when they were filed with the SEC, complied in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the SEC thereunder. The Exchange Act Reports did not, as of their respective dates, contain any untrue statement of 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 circumstances under which they were made, not misleading. The Company has timely filed all reports and registration statements and made all filings required to be made with the SEC under the Exchange Act, the Securities Act or the applicable rules and regulations of the SEC thereunder, all of which complied when filed in all material respects with all applicable requirements of the Securities Act and/or the XxxxxxxxSarbanes-Xxxxx Oxley Act of 2002 (with respect to the provisions of such act required suxx xxx xxxxxxxd to be complied with at the time such forms, reports and/or documents were required to be filed) and the rules and regulations promulgated thereunder (the "XxxxxxxxSarbanes-Xxxxx Oxley Act") and the statements contained in or accompanying the Company accompanxxxx xxx Xxxxxny Annual Report on Form 10-K and Quarterly Reports on Forms 10-Qs in accordance with Sections 302 and 906 of the XxxxxxxxSarbanes-Xxxxx Oxley Act are true and correct. (b) Without limiting the xxxxxxxx xxx generality of Section 3.05(a), (i) ZAO PricewaterhouseCoopers Audit has not resigned, or, to the knowledge of the Company, threatened to resign or been dismissed as independent public accountant of the Company as a result of or in connection with any disagreement with the Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, (ii) no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the XxxxxxxxSarbanes-Xxxxx Oxley Act with respect to any form, report or schedule filed by the Company xxxxx xx xxx Xompany with the SEC since the enactment of the XxxxxxxxSarbanes-Xxxxx Oxley Act and (iii) no enforcement action has been initiated against initxxxxx xxxxxxx the Company by the SEC relating to disclosures contained in any Company SEC Report. (c) The Company has in place the "disclosure controls and procedures" (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) required in order for the Chief Executive Officer and Chief Financial Officer of the Company to engage in the review and evaluation process mandated by the Exchange Act. The Company's "disclosure controls and procedures" are reasonably designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company's management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such reports. (d) The audited consolidated balance sheets of the Company and its subsidiaries for the fiscal years ended as of February 29, 2004, February 28, 2003 and February 28, 2002 and the related audited consolidated statements of income, retained earnings, stockholders' equity and cash flow of the Company and the Company Subsidiaries together with all related notes and schedules thereto (the "Audited Financial Statements"), the unaudited consolidated balance sheet ---------------------------- of the Company and its subsidiaries as of May 31, 2004, and the related unaudited consolidated statements of income, retained earnings, stockholders' equity and cash flow of the Company and its subsidiaries together with all related notes and schedules thereto (the "Interim Financial Statements"), all of ---------------------------- which Audited Financial Statements and Interim Financial Statements are contained in the respective Exchange Act Reports, (i) were prepared in accordance with the books of account and other financial records of the Company and its subsidiaries, (ii) present fairly the consolidated financial condition and results of operations of the Company and its subsidiaries as of the dates thereof or for the periods covered thereby, (iii) have been prepared in accordance with US GAAP applied on a basis consistent with the past practices of the Company and (iv) in case of the Interim Financial Statements, include all adjustments (consisting only of normal recurring accruals) that are necessary for a fair presentation of the consolidated financial condition and the results of the operations of the Company as of the dates thereof or for the periods covered thereby. The balance sheet of the Company contained in its Annual Report on Form 10-K for the fiscal year ended February 29, 2004 is hereinafter referred to as the "Company Balance Sheet".. --------------------- (e) The Company is currently eligible to use Form S-3 under the Securities Act for registration of the sale by the Purchaser of the Registrable Securities (as such term is defined in the Registration Rights Agreement), and the Company has filed in the preceding twelve (12) months all reports required to be filed by the Company with the SEC in a timely manner so as to obtain and maintain eligibility to use Form S-3 under the Securities Act for the resale of the Registrable Securities. (f) Set forth in Section 3.05(f) of the Disclosure Schedule is a complete list of all material amendments or modifications, that have not yet been filed with the SEC, to agreements, documents or other instruments that previously had been filed by the Company with the SEC (except as may be required with respect to the Transactions), pursuant to the Securities Act or the Exchange Act. The Company has furnished to the Purchaser a complete and correct copy of all such documents. (g) The Common Stock is listed on the Nasdaq National Market. The Company has no knowledge of any proceedings to revoke such listing. The sales of New Securities and Warrants to the Purchaser in accordance with the terms of this Agreement and the Warrant Agreement will not violate any rules of the Nasdaq National Market or the National Association of Securities Dealers as in effect on the date hereof.