DOMESTIC GOVERNMENT OFFICIAL OR
EMPLOYEE FROM CORPORATE FUNDS; (III) VIOLATED OR IS IN VIOLATION OF ANY
PROVISION OF THE U.S. FOREIGN CORRUPT PRACTICES ACT OF 1977, AS AMENDED; OR (IV)
MADE ANY UNLAWFUL BRIBE, REBATE, PAYOFF, INFLUENCE PAYMENT, KICKBACK OR OTHER
UNLAWFUL PAYMENT TO ANY FOREIGN OR DOMESTIC GOVERNMENT OFFICIAL OR EMPLOYEE.
(P)
SARBANES-OXLEY ACT.
THE COMPANY IS IN
COMPLIANCE WITH ANY AND ALL APPLICABLE REQUIREMENTS OF THE SARBANES-OXLEY ACT OF
2002 THAT ARE EFFECTIVE AS OF THE DATE HEREOF, AND ANY AND ALL APPLICABLE RULES
AND REGULATIONS PROMULGATED BY THE SEC THEREUNDER THAT ARE EFFECTIVE AS OF THE
DATE HEREOF, EXCEPT WHERE SUCH NONCOMPLIANCE WOULD NOT HAVE, INDIVIDUALLY OR IN
THE AGGREGATE, A MATERIAL ADVERSE EFFECT.
(Q)
TRANSACTIONS WITH AFFILIATES.
EXCEPT AS SET
FORTH IN THE SEC DOCUMENTS FILED AT LEAST TWO DAYS PRIOR TO THE DATE HEREOF AND
OTHER THAN THE GRANT OF STOCK OPTIONS DISCLOSED ON SCHEDULE 3(R), NONE OF THE
OFFICERS, DIRECTORS OR EMPLOYEES OF THE COMPANY IS PRESENTLY A PARTY TO ANY
TRANSACTION WITH THE COMPANY OR ANY OF ITS SUBSIDIARIES (OTHER THAN FOR ORDINARY
COURSE SERVICES AS EMPLOYEES, OFFICERS OR DIRECTORS), INCLUDING ANY CONTRACT,
AGREEMENT OR OTHER ARRANGEMENT PROVIDING FOR THE FURNISHING OF SERVICES TO OR
BY, PROVIDING FOR RENTAL OF REAL OR PERSONAL PROPERTY TO OR FROM, OR OTHERWISE
REQUIRING PAYMENTS TO OR FROM ANY SUCH OFFICER, DIRECTOR OR EMPLOYEE OR, TO THE
KNOWLEDGE OF THE COMPANY, ANY CORPORATION, PARTNERSHIP, TRUST OR OTHER ENTITY IN
WHICH ANY SUCH OFFICER, DIRECTOR, OR EMPLOYEE HAS A SUBSTANTIAL INTEREST OR IS
AN OFFICER, DIRECTOR, TRUSTEE OR PARTNER.
(R)
EQUITY CAPITALIZATION.
AS OF THE DATE
HEREOF, THE AUTHORIZED CAPITAL STOCK OF THE COMPANY CONSISTS OF (I)
2,000,000,000 SHARES OF COMMON STOCK, OF WHICH AS OF THE DATE HEREOF, 33,743,008
ARE ISSUED AND OUTSTANDING, 10,436,668 SHARES ARE RESERVED FOR ISSUANCE PURSUANT
TO THE COMPANY'S STOCK OPTION AND PURCHASE PLANS AND 709,628 SHARES ARE RESERVED
FOR ISSUANCE PURSUANT TO SECURITIES (OTHER THAN THE NOTES AND THE WARRANTS)
EXERCISABLE OR EXCHANGEABLE FOR, OR CONVERTIBLE INTO, SHARES OF COMMON STOCK AND
(II) 10,000,000 SHARES OF PREFERRED STOCK, $.0001 PAR VALUE PER SHARE, OF WHICH
AS OF THE DATE HEREOF NONE OF WHICH IS ISSUED AND OUTSTANDING OR RESERVED FOR
ISSUANCE.
ALL OF SUCH OUTSTANDING SHARES HAVE BEEN, OR UPON ISSUANCE WILL BE,
VALIDLY ISSUED AND ARE FULLY PAID AND NONASSESSABLE.
EXCEPT AS DISCLOSED IN
SCHEDULE 3(R): (I) NONE OF THE COMPANY'S SHARE CAPITAL IS SUBJECT TO PREEMPTIVE
RIGHTS OR ANY OTHER SIMILAR RIGHTS OR ANY LIENS OR ENCUMBRANCES SUFFERED OR
PERMITTED BY THE COMPANY; (II) THERE ARE NO OUTSTANDING OPTIONS, WARRANTS,
SCRIP, RIGHTS TO SUBSCRIBE TO, CALLS OR COMMITMENTS OF
11
ANY CHARACTER WHATSOEVER RELATING TO, OR SECURITIES OR RIGHTS CONVERTIBLE INTO,
OR EXERCISABLE OR EXCHANGEABLE FOR, ANY SHARE CAPITAL OF THE COMPANY OR ANY OF
ITS SUBSIDIARIES, OR CONTRACTS, COMMITMENTS, UNDERSTANDINGS OR ARRANGEMENTS BY
WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS OR MAY BECOME BOUND TO ISSUE
ADDITIONAL SHARE CAPITAL OF THE COMPANY OR ANY OF ITS