AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 29,
2010.
REGISTRATION
NO. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ADEONA
PHARMACEUTICALS, INC.
(Exact
name of registrant as specified in its charter)
NEVADA
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13-3808303
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(State
or other jurisdiction
of
incorporation or organization)
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(I.R.S.
Employer No.)
Identification
Number)
|
3930
Varsity Drive
Ann
Arbor, MI 48108
(734)
332-7800
(Address,
including ZIP code, and telephone number, including
area
code, of registrant's principal executive office)
2010
STOCK INCENTIVE PLAN
(Full
title of the Plan)
ADEONA
PHARMACEUTICALS, INC.
3930
Varsity Drive
Ann
Arbor, MI 48108
(Name,
address and telephone number of agent of services)
WITH
COPIES TO:
Leslie
Marlow, Esq.
Gracin
& Marlow, LLP
The
Chrysler Building
405
Lexington Avenue, 26
th
Floor
New York,
New York 10174
(212)
907-6457
(Name,
address and telephone number)
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Do not check if smaller
reporting company):
Large
Accelerated Filer
¨
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Accelerated
Filer
¨
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Non-Accelerated
Filer
¨
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Smaller
Reporting Company
¨
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CALCULATION
OF REGISTRATION FEE
TITLE OF
SECURITIES
BEING
REGISTERED
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AMOUNT TO BE
REGISTERED(1)
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PROPOSED MAXIMUM
OFFERING PRICE PER
SHARE(2)
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PROPOSED
AGGREGATE
OFFERING PRICE
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AMOUNT OF
REGISTRATION
FEE (3)
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Common
Stock, par value $0.001 per share, under the 2010 Stock Incentive
Plan
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3,000,000
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$
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.71
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$
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2,130,000
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$
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151.86
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(1)
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Pursuant
to Rule 416, this Registration Statement also covers any additional shares
of the Registrant’s common stock that may become issuable under the 2010
Stock Incentive Plan by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the
receipt of consideration which results in an increase in the number of
Registrant’s outstanding shares of common
stock.
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(2)
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Estimated
solely for the purpose of computing the registration fee pursuant to Rule
457 (c) and (h) under the Securities Act of 1933, as amended, on the basis
of the average of the high and low prices of the securities being
registered hereby on the American Stock Exchange (the "AMEX") on November
26, 2010.
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(3)
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Calculated
under Section 6(b) of the Securities Act of 1933 as .0000713 of the
aggregate offering price.
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EXPLANATORY
NOTE
Adeona
Pharmaceuticals, Inc. (the “Registrant” or the “Company”) hereby files this
Registration Statement on Form S-8 relating to its common stock, par value
$0.001 per share (the “Common Stock”), which have been reserved for issuance and
are issuable pursuant to the Company’s 2010 Stock Incentive Plan (hereinafter
referred to as the “Plan”).
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information specified in Item 1 and Item 2 of Part I of this Registration
Statement on Form S-8 (the “Registration Statement”) is omitted from this filing
in accordance with the provisions of Rule 428 under the Securities Act of 1933,
as amended (the “Securities Act”), and the introductory note to Part I of Form
S-8. The documents containing the information specified in Part I will be
delivered to the participants in the Plan as required by Rule 428(b)(1). Such
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE
The
Commission allows us to “incorporate by reference” the information we file with
it which means that we can disclose important information to you by referring
you to those documents instead of having to repeat the information in this
prospectus. The information incorporated by reference is considered to be part
of this prospectus, and later information that we file with the Commission will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the Commission under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act between the date of
this prospectus and the termination of the offering:
·
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Our
annual report on Form 10-K for the fiscal year ended December 31,
2009 filed with the Securities and Exchange Commission on March 31,
2010;
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·
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The description of our common
stock set forth in our registration statement on Form 8-A, filed with
the Commission on January 29, 1993 (File
No. 000-21156).
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·
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Our Current Report on Form 8-K
filed with the Securities and Exchange Commission on January 13,
2010.
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·
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Our Current Report on Form 8-K
filed with the Securities and Exchange Commission on February 9,
2010.
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·
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Our Current Report on Form 8-K
filed with the Securities and Exchange Commission on March 16,
2010.
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·
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Our Current Report on Form
8-K/A filed with the Securities and Exchange Commission on March 31,
2010.
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·
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Our Current Report on Form 8-K
filed with the Securities and Exchange Commission on April 5,
2010.
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·
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Our Current Report on Form 8-K
filed with the Securities and Exchange Commission on May 11,
2010.
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·
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Our Quarterly Report on Form 10-Q
filed with the Securities and Exchange Commission on May 17,
2010.
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·
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Our
Current Report on Form 8-K filed with the Securities and Exchange
Commission on June 3, 2010.
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·
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Our
Current Report on Form 8-K filed with the Securities and Exchange
Commission on August 16, 2010.
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·
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Our
Quarterly Report on Form 10-Q filed with the Securities and Exchange
Commission on August 16, 2010.
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·
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Our
Current Report on Form 8-K filed with the Securities and Exchange
Commission on November 5, 2010.
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All
reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act shall be deemed to
be incorporated by reference in this Registration Statement and to be a part of
this Registration Statement from the respective date of filing of each of those
reports or documents until the filing of a post-effective amendment to this
Registration Statement which indicates either that all securities offered by
this Registration Statement have been sold or which deregisters all of the
securities under this Registration Statement then remaining unsold.
Any
statement contained in this Registration Statement or in a document incorporated
or deemed to be incorporated by reference in this Registration Statement shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in this Registration
Statement or in any other subsequently filed document which also is or is deemed
to be incorporated by reference in this Registration Statement modifies or
supersedes that statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM
4. DESCRIPTION OF SECURITIES
Not
applicable.
ITEM
5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not
applicable.
ITEM
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 78.7502
of the Nevada Revised Statutes (the “Nevada Law”) empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit, or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he is not liable pursuant to Section 78.138
of the Nevada Law or if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. Section 78.138 of the Nevada Law provides
that, with certain exceptions, a director or officer is not individually liable
to the corporation or its stockholders for any damages as a result of any act or
failure to act in his capacity as a director or officer unless it is proven that
(i) his act or failure to act constituted a breach of his fiduciary duties
as a director or officer, and (ii) his breach of those duties involved
intentional misconduct, fraud or a knowing violation of law.
Section 78.7502
empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above against expenses, including amounts paid in settlement and attorneys’ fees
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in accordance with the standards
set forth above, except that no indemnification may be made in respect of any
claim, issue or matter as to which such person shall have been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which such action
or suit was brought or other court of competent jurisdiction determines that in
view of all the circumstances of the case such person is fairly and reasonably
entitled to indemnify for such expenses as the court deems proper.
Section 78.7502
further provides that to the extent a director or officer of a corporation has
been successful in the defense of any action, suit or proceeding referred to in
subsections (1) and (2) of Section 78.7502, or in the
defense of any claim, issue or matter therein, the corporation shall indemnify
him against expenses (including attorneys’ fees) actually and reasonably
incurred by him in connection with the defense or settlement of the action or
suit.
Section 78.751
of the Nevada Law provides that the articles of incorporation, the bylaws or an
agreement made by the corporation may provide that the expenses of officers and
directors incurred in defending a civil or criminal action, suit or proceeding
must be paid by the corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an undertaking by
or on behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to be
indemnified by the corporation. The Registrant’s bylaws require the
Registrant to make such payment of expenses in advance upon receipt of such an
undertaking.
Our
Articles of Incorporation and bylaws provide that no officer or director shall
be personally liable to us or our stockholders for monetary damages except as
provided pursuant to Nevada Revised Statutes. Our bylaws and Articles of
Incorporation also provide that we will indemnify and hold harmless each person,
who was or is made or is threatened to be made a party or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a “Proceeding”) to the fullest extent permitted by applicable law
as it currently exists or as it may be amended, by reason of the fact that he or
she, or a person for whom he or she is the legal representative, is or was a
director or officer of the Corporation or, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust, enterprise or nonprofit entity against all liability and loss
suffered and expenses (including attorneys’ fees) reasonably incurred by
such person. We also have the power to defend such person from all suits
or claims in accordance with the Nevada Revised Statutes. We also have the right
to pay the expenses (including attorneys’ fees) incurred by an officer or
director in defending any Proceeding in advance of its final disposition,
provided
,
however
, that, to the
extent required by applicable law, such payment of expenses in advance of the
final disposition of the Proceeding shall be made only upon receipt of an
undertaking by such Person to repay all amounts advanced if it should be
ultimately determined that such Person is not entitled to be
indemnified.
The
rights accruing to any person under our bylaws and Articles of Incorporation do
not exclude any other right to which any such person may lawfully be entitled,
and we may indemnify or reimburse such person in any proper case, even though
not specifically provided for by the bylaws and Articles of Incorporation. The
effect of these provisions is to eliminate the personal liability of our
directors and officers yp us and our stockholders for monetary
actions.
In the
employment agreement that we entered into with Dr. Kuo, we agreed to provide Dr.
Kuo with full advance indemnity to the extent permitted by law.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the small business issuer for
expenses incurred or paid by a director, officer or controlling person of the
small business issuer in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, we will, unless in the opinion
of our counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
ITEM
7. EXEMPTION FROM REGISTRATION CLAIMED
Not
applicable.
ITEM 8. EXHIBITS
Exhibit No.
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Description of Document
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3.1
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Certificate
of Incorporation of the Registrant (incorporated herein by reference to
Registrant’s Form 10-KSB for the fiscal year ended December 31, 1996
(“Form 10-KSB”)
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3.2
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By-laws
of the Registrant (incorporated herein by reference to the Registrant’s
Form 10-KSB)
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4.1
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Registrant’s
2010 Incentive Stock Plan
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5.1
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Opinion
of counsel re: legality of securities being registered
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23.1
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Consent
of Berman & Company, PA
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23.2
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Consent
of Counsel (included in Exhibit
5.1)
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ITEM
9. UNDERTAKINGS
The
undersigned Registrant hereby undertakes:
1. To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
i. To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933, as amended;
ii. To
reflect in the prospectus any facts or events arising after the effective date
of this registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement;
iii. To
include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to
such information in the registration statement; provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in
this Registration Statement.
2. That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
3. To
remove from registration by means of a post-effective amendment any of the
securities being registered that remain unsold at the termination of the
offering.
The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant, the
Registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in Ann Arbor,
Michigan, on the 29th day of November, 2010.
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ADEONA
PHARMACEUTICALS, INC.
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By:
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/s/ James S. Kuo
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Name:
James S. Kuo
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Title:
President, Chief Executive Officer and Chief Financial
Officer
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(Principal
executive officer and
|
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principal
financial officer)
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the date
indicated.
Date:
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November
29, 2010
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By:
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/s/ James S. Kuo
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|
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James
S. Kuo
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President,
Chief Executive Officer and Chief Financial Officer
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(Principal
executive officer and principal financial Officer)
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Date:
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November
29, 2010
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By:
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/s/ Steven Kanzer
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Steven
Kanzer
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Director
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Date:
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November
29, 2010
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By:
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/s/ Jeff Riley
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Jeff
Riley
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Director
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Date:
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November
29, 2010
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By:
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/s/ Jeffrey J. Kraws
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Jeffrey
J. Kraws
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Director
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Date:
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November
29, 2010
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By:
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/s/ Jeff Wolf
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Jeff
Wolf
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Director
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Exhibit
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Description
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3.1
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Certificate
of Incorporation (1)
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3.2
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By-Laws
(1)
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4.1
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2010
Incentive Stock Plan (2)
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5.1
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Opinion
of Gracin & Marlow, LLP regarding Legality of Shares
(2)
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23.1
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Consent
of Berman & Company, P.A., Independent Registered Public Accounting
Firm (2)
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23.2
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Consent
of Gracin & Marlow, LLP (contained in Exhibit
5.1)
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(1) Incorporated by reference to the Registrant’s Form 10-KSB for the
fiscal year ended December 31, 1996.
(2) Filed
herewith.
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