participation of underwriters or similar matters and the information appears elsewhere in the registration statement or a prospectus, no amendment need be filed. 2. Small business issuers may file copies of each exhibit, rather than originals, except as otherwise specifically noted. 3. Electronic filings. Whenever an exhibit is filed in paper pursuant to a hardship exemption (§§ 232.201 and 232.202 of this chapter), the letter "P" (paper) should be placed next to the exhibit in the list of exhibits required by Item 601(a)(2) of this Rule (§ 228.601(a)(2)). Whenever an electronic confirming copy of an exhibit is filed pursuant to a hardship exemption (§ 232.201 or §232.202(d) of this chapter), the exhibit index should specify where the confirming electronic copy can be located; in addition, the designation "CE" (confirming electronic) should be placed next to the listed exhibit in the exhibit index. Exhibits X X X** *** X N/A N/A N/A N/A x X Only if incorporated by reference into a prospectus and delivered to holders along with the prospectus as permitted by the the Form 10-KSB. the text of Where the opinion of the expert or counsel has been incorporated by reference into a previously filed Securities Act An issuer need not provide an exhibit if: (1) an election was made under Form S-4 to provide S-2 or S-3 disclosure; and (2) the form selected (S-2 or S-3) would not require the company to provide the exhibit. **** If required under Item 304 of Regulation S-B. ***** Financial Data Schedules shall be filed by electronic filers only. Such schedule shall be filed only when a filing includes annual and/or interim financial statements that have not been previously included in a filing with the Commission. (b) Description of exhibits. Below is a description of each document listed in the exhibit table. agreement. (1) Underwriting Each agreement with a principal underwriter for the distribution of the securities. If the terms have been determined and the securities are to be registered on Form S-3 (§ 239.13), the agreement may be filed on Form 8-K (§ 249.308) after the effectiveness of the registration statement. (2) Plan of purchase, sale, reorganization, arrangement, liquidation or succession. Any such plan described in the filing. Schedules or attachments may be omitted if they are listed in the index and provided to the Commission upon request. (3) Articles of incorporation and bylaws. (i) A complete copy of the articles of incorporation. Whenever amendments to articles of incorporation are filed, a complete copy of the articles as amended shall be filed. (ii) A complete copy of the by-laws. Whenever amendments to the by-laws are filed, a complete copy of the bylaws as amended shall be filed. (4) Instruments defining the rights of security holders, including indentures. (i) All instruments that define the rights of holders of the equity or debt securities that the issuer is registering, including the pages from the articles of incorporation or by-laws that define those rights. (ii) All instruments defining the rights of holders of long term debt unless the total amount of debt covered by the instrument does not exceed 10% of the total assets of the small business issuer. (iii) Copies of indentures to be qualified under the Trust Indenture Act of 1939 shall include an itemized table of contents and a cross reference sheet showing the location of the provisions inserted in accordance with Sections 310 through 318(a) of that Act. Instruction to Item 601(b)(4)(iii) for electronic filings. If the instrument defining the rights of security holders is in the form of a certificate, the text appearing on the certificate shall be reproduced in an electronic filing together with a description of any other graphic and image material appearing on the certificate, as provided in Rule 304 of Regulation S-T (§ 232.304 of this chapter). (5) Opinion on legality. (i) An opinion of counsel on the legality of the securities being registered stating whether they will, when sold, be legally issued, fully paid and non-assessable, and, if debt securities, whether they will be binding obligations of the small business issuer. (ii) If the securities being registered are issued under a plan that is subject to the requirements of ERISA furnish either: (A) An opinion of counsel which confirms compliance with ERISA; or (B) A copy of the Internal Revenue Service determination letter that the plan is qualified under section 401 of the Internal Revenue Code. If the plan is later amended, the small business issuer must have the opinion of counsel and the IRS determination letter updated to confirm compliance and qualification. (6) No Exhibit Required. (7) [Reserved] (8) Opinion on tax matters. If tax consequences of the transaction are material to an investor, an opinion of counsel, an independent public or certified public accountant or, a revenue ruling from the Internal Revenue Service, supporting the tax matters and consequences to the shareholders. The exhibit is required for filings to which Securities Act Industry Guide 5 applies. (9) Voting trust agreement and amendments. (10) Material contracts. (i) Every material contract, not made in the ordinary course of business, that will be performed after the filing of the registration statement or report or was entered into not more than two years before such filing. Also include the following contracts: (A) Any contract to which directors, officers, promoters, voting trustees, security holders named in the registration statement or report, or underwriters are parties other than contracts involving only the purchase or sale of current assets having a determinable market price, at such market price; (B) Any contract upon which the small business issuer's business is substantially dependent, such as contracts with principal customers, principal suppliers, franchise agreements, etc.; (C) Any contract for the purchase or sale of any property, plant or equipment for a consideration exceeding 15 percent of such assets of the small business issuer; or (D) Any material lease under which a part of the property described in the registration statement or report is held by the small business issuer. (ii)(A) Any management contract or any compensatory plan, contract or arrangement, including but not limited to plans relating to options, warrants or rights, pension, retirement or deferred compensation or bonus, incentive or profit sharing (or if not set forth in any formal document, a written description thereof) in which any director or any of the named executive officers of the registrant as defined by Item 402(a)(2) (§ 228.402(a)(2)) participates shall be deemed material and shall be filed; and any other management contract or any other compensatory plan, contract, or arrangement in which any other executive officer of the registrant participates shall be filed unless immaterial in amount or significance. (B) The following management contracts or compensatory plans need not be filed: (1) Ordinary purchase and sales agency agreements; (2) Agreements with managers of stores in a chain organization or similar organization; (3) Contracts providing for labor or salesmen's bonuses or payments to a class of security holders, as such; (4) Any compensatory plan which is available to employees, officers or directors generally and provides for the same method of allocation of benefits between management and nonmanagement participants; and (5) Any compensatory plan if the issuer is a wholly owned subsidiary of a reporting company and is filing a report on Form 10-KSB (§ 249.310b), or registering debt or non-voting preferred stock on Form S-2 (§ 239.12). Instruction 1 to Item 601(b)(10): Only copies of the various remunerative plans need be filed. Each individual director's or executive officer's personal agreement under the plans need not be filed, unless they contain material provisions. Instruction 2 to Item 601(b)(10): If a material contract is executed or becomes effective during the reporting period reflected by a Form 10-QSB or Form 10-KSB, it shall be filed as an exhibit to the Form 10-QSB or Form 10-KSB filed for the corresponding period. See paragraph (a)(3) of this Item. With respect to quarterly reports on Form 10QSB, only those contracts executed or becoming effective during the most recent period reflected in the report shall be filed. (11) Statement re computation of per share earnings. An explanation of the computation of per share earnings on both a primary and fully diluted basis unless the computation can be clearly determined from the registration statement or report. (12) No exhibit required. (13)(i) Annual report to security holders for the last fiscal year, Form 10-Q or 10-QSB or quarterly report to security holders, if incorporated by ref erence in the filing. Such reports, except for the parts which are expressly incorporated by reference in the filing are not deemed "filed" as part of the filing. If the financial statements in the report have been incorporated by reference in the filing, the accountant's certificate shall be manually signed in one copy. See Rule 411(b) (§ 230.411(b) of this chapter). (ii) If the annual or quarterly report to security holders is incorporated by reference in whole or in part into an electronic filing, whatever is so incorporated must be filed in electronic format as an exhibit to the filing. (14) [Reserved] (15) Letter on unaudited interim financial information. A letter, where applicable, from the independent accountant which acknowledges awareness of the use in a registration statement of a report on unaudited interim financial information. The letter is not considered a part of a registration statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of sections 7 and 11 of the Securities Act. Such letter may be filed with the registration statement, an amendment thereto, or a report on Form 10-QSB (§ 249.308b) which is incorporated by reference into the registration statement. (16) Letter on change in certifying accountant. File the letter required by Item 304(a)(3). (17) Letter on director resignation. Any letter from a former director which describes a disagreement with the small business issuer that led to the director's resignation or refusal to stand for re-election and which requests that the matter be disclosed. (18) Letter on change in accounting principles. Unless previously filed, a letter from the issuer's accountant stating whether any change in accounting principles or practices followed by the issuer, or any change in the method of applying any such accounting principles or practices, which affected the financial statements being filed with the Commission in the report or which is expected to affect the financial statements of future fiscal years is to an alternative principle which in his judgment is preferable under the circumstances. No such letter need be filed when such change is made in response to a standard adopted by the Financial Accounting Standards Board that creates a new accounting principle, that expresses a preference for an accounting principle, or that rejects a specific accounting principle. (19) Report furnished to security holders. If the issuer makes available to its stockholders or otherwise publishes, within the period prescribed for filing the report, a document or statement containing information meeting some or all of the requirements of Part I of Form 10-Q or 10-QSB, the information called for may be incorporated by reference to such published document or statement provided copies thereof are included as an exhibit to the registration statement or to Part I of the Form 10-Q or 10-QSB report. (20) Other documents or statements to security holders or any document incorporated by reference. (21) Subsidiaries of the small business issuer. A list of all subsidiaries, the state or other jurisdiction of incorporation or organization of each, and the names under which such subsidiaries do business. (22) Published report regarding matters submitted to vote of security holders. Published reports containing all of the information called for by Item 4 of Part II of Form 10-Q (or 10-QSB) or Item 4 of Part I of Form 10-K or 10-KSB which is referred to therein in lieu of providing disclosure in Form 10-Q (10-QSB) or 10- (23) Consents of experts and counsel. (i) (ii) Exchange Act reports. If required to file a consent for material incorporated by reference in a previously filed registration statement under the Securities Act, the dated and manually signed consent to the material incorporated by reference. The consents shall be dated and manually signed. (24) Power of attorney. If a person signs a registration statement or report under a power of attorney, a manually signed copy of such power of attorney or if located elsewhere in the registration statement, a reference in the index to where it is located. In addition, if an officer signs a registration statement for the small business issuer by a power of attorney, a certified copy of a resolution of the board of directors authorizing such signature. A power of attorney that is filed with the Commission must relate to a specific filing or an amendment, provided, however, that a power of attorney relating to a registration statement under the Securities Act or an amendment thereto also may relate to any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act (§ 230.462(b) of this chapter. A power of attorney that confers general authority must not be filed with the Commission. (25) Statement of eligibility of trustee. (i) Form T-1 (§ 269.1 of this chapter) if an indenture is being qualified under the Trust Indenture Act, bound separately from the other exhibits. (ii) The requirement to bind separately the statement of eligibility and qualification does not apply to statements submitted in electronic format.Rather, such statements must be submitted as exhibits in the same electronic submission as the registration statement to which they relate, or in an amendment thereto, except that § 228.601 electronic filers that rely on Trust Indenture Act Section 305(b)(2) for determining the eligibility of the trustee under indentures for securities to be issued, offered or sold on a delayed basis by or on behalf of the registrant shall file such statements separately in the manner prescribed by $260.5b-1 through $260.5b-3 of this chapter and by the EDGAR Filer Manual. (26) Invitations for competitive bids. If the registration statement covers securities that the small business issuer is offering at competitive bidding, any invitation for competitive bid that the small business issuer will send or give to any person shall be filed. (27) Financial Data Schedule. The Financial Data Schedule must be filed only by electronic filers. Applicable requirements are set out in paragraph (c) of this Item. (28) through (98) [Reserved] (99) Additional exhibits. (i) Any additional exhibits if listed and described in the exhibit index. (ii) If pursuant to Section 11(a) of the Securities Act (15 U.S.C. 77k(a)) an issuer makes generally available to its security holders an earnings statement covering a period of at least 12 months beginning after the effective date of the registration statement, and if such earnings statement is made available by "other methods" than those specified in paragraphs (a) or (b) of § 230.158 of this chapter, it must be filed as an exhibit to the Form 10-QSB or the Form 10-KSB, as appropriate, covering the period in which the earnings statement was released. (c) Financial Data Schedule--(1) General. (i) A Financial Data Schedule must be submitted only by an electronic filer that is not a foreign private issuer or foreign government. The schedule must be submitted in the electronic format prescribed by the EDGAR Filer Manual, and must set forth the financial information specified in the applicable table in the Appendices to this item. (ii) Any electronic filing that includes financial statements of the registrant for a recent fiscal year or interim year to date period, or both, for which financial statements have not previously been filed, otherwise than by incorporation by reference, shall in clude as an exhibit a Financial Data Schedule containing financial information for such fiscal year or interim year to date periods, or both. NOTE 1 TO PARAGRAPH (C)(1)(I): Financial Data Schedules are not required in connection with registration statements on Form S-8 (§ 239.16b of this chapter) or annual reports on Form 11-K (§ 249.311 of this chapter), for employee stock purchase, savings and similar plans. NOTE 2 TO PARAGRAPH (C)(1)(II): Issuers of asset-backed securities (as that term is defined in the general instructions to Form S3 (§ 239.13 of this chapter), except that they need not be investment grade) that are not required to file financial statements with the Commission in their Securities Act registration statements or their reports filed pursuant to sections 13(a) or 15(d) of the Exchange Act are not required to submit a Financial Data Schedule in connection with those filings. (iii) The amounts reflected in the Financial Data Schedule must correspond to or be calculable from amounts reflected in the small business issuer's financial statements or associated notes. (iv) The schedule must be submitted as an exhibit to the filing(s) to which it relates, but will not be treated as filed for purposes of the federal securities laws, nor will it be deemed a part of any registration statement to which it relates. It shall, however, be subject to all other liability and anti-fraud provisions of the federal securities laws. See Rule 402 of Regulation S-T (§ 232.402 of this chapter). (v) A Financial Data Schedule shall be submitted only in electronic format. Where a registrant submits a filing, otherwise required to include a Financial Data Schedule, in paper pursuant to a hardship exemption under Rule 201 or Rule 202(d) of Regulation S-T (§ 232.201 or § 232.202(d) of this chapter, the Financial Data respectively), Schedule shall not be included with the paper filing, but shall be included with the required confirming electronic copy. (vi) Financial Data Schedules shall not include pro forma financial information. NOTE 1 TO PARAGRAPH (C)(1): Failure to furnish a Financial Data Schedule will not prevent acceptance of the filing for which the schedule is required. However, as the sched ule may be used by the Commission staff in |