OR OWNERSHIP
IMPOSED BY APPLICABLE FEDERAL OR STATE SECURITIES LAWS OR SET FORTH IN THIS
AGREEMENT.
THE COMPANY HAS RESERVED FROM ITS DULY AUTHORIZED CAPITAL STOCK THE
MAXIMUM NUMBER OF SHARES OF COMMON STOCK ISSUABLE PURSUANT TO THIS AGREEMENT.
(G)
CAPITALIZATION.
AS OF THE DATE HEREOF, THE AUTHORIZED CAPITAL
STOCK OF THE COMPANY CONSISTS OF 108,000,000 SHARES, 100,000,000 SHARES OF WHICH
ARE COMMON STOCK, $0.01 PAR VALUE PER SHARE AND 8,000,000 SHARES OF WHICH ARE
PREFERRED STOCK, $0.01 PAR VALUE PER SHARE.
AS OF THE DATE HEREOF AND
IMMEDIATELY PRIOR TO THE TRANSACTIONS CONTEMPLATED HEREBY, THERE ARE 66,864,383
SHARES OF COMMON STOCK ISSUED AND OUTSTANDING AND NO SHARES OF PREFERRED STOCK
ISSUED AND OUTSTANDING.
OTHER THAN AS
6
CONTEMPLATED IN THIS AGREEMENT, THE COMPANY HAS NOT ISSUED ANY CAPITAL STOCK
SINCE DECEMBER 14, 2005 OTHER THAN PURSUANT TO THE EXERCISE OF (I) STOCK OPTIONS
OR RESTRICTED GRANTS HELD BY EMPLOYEES, OFFICERS, DIRECTORS, OR CONSULTANTS,
WHETHER OR NOT PURSUANT TO THE COMPANY'S EQUITY INCENTIVE PLANS OR STOCK OPTION
PLANS, (II) THE ISSUANCE OF SHARES OF COMMON STOCK TO EMPLOYEES PURSUANT TO THE
COMPANY'S EQUITY INCENTIVE PLANS, STOCK OPTION PLANS, STOCK OPTION AGREEMENTS,
RESTRICTED STOCK AGREEMENTS, STOCK OWNERSHIP PLANS OR DIVIDEND REINVESTMENT
PLANS, AND (III) PURSUANT TO THE CONVERSION OR EXERCISE OF OUTSTANDING COMMON
STOCK EQUIVALENTS.
EXCEPT AS SET FORTH IN THE DISCLOSURE MATERIALS, NO PERSON
HAS ANY RIGHT OF FIRST REFUSAL, PREEMPTIVE RIGHT, RIGHT OF PARTICIPATION, OR ANY
SIMILAR RIGHT TO PARTICIPATE IN THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
DOCUMENTS.
EXCEPT AS DISCLOSED ON SCHEDULE 3.1(G) OF THE DISCLOSURE SCHEDULES,
THERE ARE NO OUTSTANDING OPTIONS, WARRANTS, SCRIPT RIGHTS TO SUBSCRIBE TO, CALLS
OR COMMITMENTS OF ANY CHARACTER WHATSOEVER RELATING TO, OR SECURITIES, RIGHTS OR
OBLIGATIONS CONVERTIBLE INTO OR EXCHANGEABLE FOR, OR GIVING ANY PERSON ANY RIGHT
TO SUBSCRIBE FOR OR ACQUIRE, ANY SHARES OF COMMON STOCK, OR CONTRACTS,
COMMITMENTS, UNDERSTANDINGS OR ARRANGEMENTS BY WHICH THE COMPANY OR ANY
SUBSIDIARY IS OR MAY BECOME BOUND TO ISSUE ADDITIONAL SHARES OF COMMON STOCK, OR
SECURITIES OR RIGHTS CONVERTIBLE OR EXCHANGEABLE INTO SHARES OF COMMON STOCK.
THE ISSUE AND SALE OF THE SECURITIES WILL NOT OBLIGATE THE COMPANY TO ISSUE
SHARES OF COMMON STOCK OR OTHER SECURITIES TO ANY PERSON (OTHER THAN THE SHARES
OF COMMON STOCK BEING ISSUED TO THE PURCHASER HEREUNDER) AND WILL NOT RESULT IN
A RIGHT OF ANY HOLDER OF COMPANY SECURITIES TO ADJUST THE EXERCISE, CONVERSION,
EXCHANGE OR RESET PRICE UNDER SUCH SECURITIES.
(H)
SEC REPORTS; FINANCIAL STATEMENTS.
THE COMPANY HAS FILED ALL
REPORTS REQUIRED TO BE FILED BY IT UNDER THE SECURITIES ACT AND THE EXCHANGE
ACT, INCLUDING PURSUANT TO SECTION 13(A) OR 15(D) THEREOF, FOR THE TWO YEARS
PRECEDING THE DATE HEREOF (OR SUCH SHORTER PERIOD AS THE COMPANY WAS REQUIRED BY
LAW TO FILE SUCH MATERIAL) (THE FOREGOING MATERIALS, INCLUDING THE EXHIBITS
THERETO (TOGETHER WITH ANY MATERIALS FILED BY THE COMPANY UNDER THE EXCHANGE
ACT, WHETHER OR NOT REQUIRED), BEING COLLECTIVELY REFERRED TO HEREIN AS THE "SEC
REPORTS" AND, TOGETHER WITH THE DISCLOSURE SCHEDULES TO