OF EXERCISES)
FOR ISSUANCE TO EMPLOYEES, CONSULTANTS AND NON-EMPLOYEE DIRECTORS PURSUANT TO
THE COMPANY STOCK OPTION PLANS, UNDER WHICH OPTIONS WERE OUTSTANDING FOR AN
AGGREGATE OF 5,998,839 SHARES.
ALL SHARES OF COMPANY COMMON STOCK SUBJECT TO
ISSUANCE AS AFORESAID, UPON ISSUANCE ON THE TERMS AND CONDITIONS SPECIFIED IN
THE INSTRUMENTS PURSUANT TO WHICH THEY ARE ISSUABLE, WOULD BE DULY AUTHORIZED,
VALIDLY ISSUED, FULLY PAID AND NON-ASSESSABLE.
SECTION 2.3(A) OF THE COMPANY
SCHEDULE LISTS EACH HOLDER OF COMPANY COMMON STOCK AND COMPANY PREFERRED STOCK,
EACH OUTSTANDING OPTION (THE "COMPANY OPTIONS") AND EACH OUTSTANDING WARRANT
("COMPANY WARRANTS") TO ACQUIRE SHARES OF COMPANY COMMON STOCK OR COMPANY
PREFERRED STOCK, AS APPLICABLE, THE NAME OF THE HOLDER OF SUCH OPTION OR
WARRANT, THE NUMBER OF SHARES SUBJECT TO SUCH OPTION OR WARRANT, THE EXERCISE
PRICE OF SUCH OPTION OR WARRANT, THE NUMBER OF SHARES AS TO WHICH SUCH OPTION OR
WARRANT WILL HAVE VESTED AT SUCH DATE, THE VESTING SCHEDULE AND TERMINATION DATE
OF SUCH OPTION OR WARRANT AND WHETHER THE EXERCISABILITY OF SUCH OPTION OR
WARRANT WILL BE ACCELERATED IN ANY WAY BY THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR FOR ANY OTHER REASON, INDICATING THE EXTENT OF ACCELERATION, IF
ANY.
THE COMPANY HAS NO OBLIGATION (CONTINGENT OR OTHERWISE) TO PAY ANY
DIVIDEND WITH RESPECT TO ANY SHARES OF COMPANY CAPITAL STOCK OR TO MAKE ANY
OTHER DISTRIBUTION IN RESPECT THEREOF.
THE COMPANY HAS DELIVERED TO PARENT OR
PARENT'S COUNSEL TRUE AND ACCURATE COPIES OF THE FORMS OF DOCUMENTS USED FOR THE
ISSUANCE OF COMPANY STOCK OPTIONS AND COMPANY WARRANTS.
(B)
EXCEPT AS CONTEMPLATED BY THIS AGREEMENT AND EXCEPT AS SET FORTH
IN SECTION 2.3(A) HEREOF, THERE ARE NO SUBSCRIPTIONS, OPTIONS, WARRANTS, EQUITY
SECURITIES, PARTNERSHIP INTERESTS OR SIMILAR OWNERSHIP INTERESTS, CALLS, RIGHTS
(INCLUDING PREEMPTIVE RIGHTS), COMMITMENTS OR AGREEMENTS OF ANY CHARACTER TO
WHICH THE COMPANY IS A PARTY OR BY WHICH IT IS BOUND
11
OBLIGATING THE COMPANY TO ISSUE, DELIVER OR SELL, OR CAUSE TO BE ISSUED,
DELIVERED OR SOLD, OR REPURCHASE, REDEEM OR OTHERWISE ACQUIRE, OR CAUSE THE
REPURCHASE, REDEMPTION OR ACQUISITION OF, ANY SHARES OF CAPITAL STOCK,
PARTNERSHIP INTERESTS OR SIMILAR OWNERSHIP INTERESTS OF THE COMPANY OR
OBLIGATING THE COMPANY TO GRANT, EXTEND, ACCELERATE THE VESTING OF OR ENTER INTO
ANY SUCH SUBSCRIPTION, OPTION, WARRANT, EQUITY SECURITY, CALL, RIGHT, COMMITMENT
OR AGREEMENT.
(C)
EXCEPT AS CONTEMPLATED BY THIS AGREEMENT AND EXCEPT AS SET FORTH
ON SECTION 2.3(C) OF THE COMPANY SCHEDULE, THERE ARE NO REGISTRATION RIGHTS, AND
THERE IS NO VOTING TRUST, PROXY, RIGHTS PLAN, ANTI-TAKEOVER PLAN OR OTHER
AGREEMENT OR UNDERSTANDING TO WHICH THE COMPANY IS A PARTY OR BY WHICH THE
COMPANY IS BOUND WITH RESPECT TO ANY EQUITY SECURITY OF ANY CLASS OF THE
COMPANY.
2.4
AUTHORITY RELATIVE TO THIS AGREEMENT.
THE COMPANY HAS ALL
NECESSARY CORPORATE POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT
AND TO PERFORM ITS OBLIGATIONS HEREUNDER AND TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY (INCLUDING THE MERGER).
THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE CONSUMMATION BY THE COMPANY OF