EFFECT.
(E)
FILINGS, CONSENTS AND APPROVALS.
THE COMPANY IS NOT REQUIRED TO
OBTAIN ANY CONSENT, WAIVER, AUTHORIZATION OR ORDER OF, GIVE ANY NOTICE TO, OR
MAKE ANY FILING OR REGISTRATION WITH, ANY COURT OR OTHER FEDERAL, STATE, LOCAL
OR OTHER GOVERNMENTAL AUTHORITY OR OTHER PERSON IN CONNECTION WITH THE
EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY OF THE TRANSACTION DOCUMENTS,
OTHER THAN (I) FILINGS REQUIRED PURSUANT TO SECTION 4.4 OF THIS AGREEMENT, (II)
THE FILING WITH THE COMMISSION OF THE REGISTRATION STATEMENT, (III) THE FILING
OF FORM D WITH THE COMMISSION AND SUCH FILINGS AS ARE REQUIRED TO BE MADE UNDER
APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS, RULES AND REGULATIONS AND THE
APPLICATION(S) TO EACH TRADING MARKET FOR THE LISTING OF THE SHARES FOR TRADING
THEREON IN THE TIME AND MANNER REQUIRED THEREBY, (V) THOSE MADE OR OBTAINED
PRIOR TO CLOSING (COLLECTIVELY, THE "REQUIRED APPROVALS"), AND (VI) THOSE
REQUIRED APPROVALS, THE FAILURE OF WHICH BY THE COMPANY TO OBTAIN WOULD NOT HAVE
A MATERIAL ADVERSE EFFECT.
(F)
ISSUANCE OF THE SECURITIES.
THE COMPANY SECURITIES ARE DULY
AUTHORIZED AND, WHEN ISSUED AND PAID FOR IN ACCORDANCE WITH THE APPLICABLE
TRANSACTION DOCUMENTS, WILL BE DULY AND VALIDLY ISSUED, FULLY PAID AND
NONASSESSABLE, FREE AND CLEAR OF ALL LIENS IMPOSED BY THE COMPANY OTHER THAN
RESTRICTIONS ON TRANSFER PROVIDED FOR IN THE TRANSACTION DOCUMENTS AND
APPLICABLE FEDERAL AND STATE SECURITIES OR "BLUE SKY" LAWS, RULES OR
REGULATIONS.
THE WARRANT SHARES, WHEN ISSUED IN ACCORDANCE WITH THE TERMS OF
THE TRANSACTION DOCUMENTS, WILL BE VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE,
FREE AND CLEAR OF ALL LIENS IMPOSED BY THE COMPANY.
THE COMPANY HAS RESERVED
FROM ITS DULY AUTHORIZED CAPITAL STOCK THE MAXIMUM NUMBER OF SHARES OF COMMON
STOCK ISSUABLE PURSUANT TO THIS AGREEMENT AND THE WARRANTS.
(G)
CAPITALIZATION.
THE CAPITALIZATION OF THE COMPANY IS AS SET FORTH
ON SCHEDULE 3.1(G).
EXCEPT AS SET FORTH IN SCHEDULE 3.1(G), THE COMPANY HAS NOT
ISSUED ANY CAPITAL STOCK SINCE ITS MOST RECENTLY FILED PERIODIC REPORT UNDER THE
EXCHANGE ACT, OTHER THAN PURSUANT TO THE EXERCISE OF EMPLOYEE STOCK OPTIONS
UNDER THE COMPANY'S STOCK OPTION PLANS, THE ISSUANCE OF SHARES OF COMMON STOCK
TO EMPLOYEES PURSUANT TO THE COMPANY'S EMPLOYEE STOCK PURCHASE PLAN AND PURSUANT
TO THE CONVERSION OR EXERCISE OF COMMON STOCK EQUIVALENTS OUTSTANDING AS OF THE
DATE OF THE MOST RECENTLY FILED PERIODIC
10
REPORT UNDER THE EXCHANGE ACT.
EXCEPT AS DISCLOSED ON SCHEDULE 3.1(G), 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 A RESULT OF THE PURCHASE AND SALE OF THE
COMPANY SECURITIES AND AS SET FORTH IN SCHEDULE 3.1(G), 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 EXERCISABLE OR EXCHANGEABLE FOR, OR GIVING ANY PERSON ANY
RIGHT TO SUBSCRIBE FOR OR ACQUIRE, ANY SHARES OF COMMON STOCK, OR CONTRACTS,
COMMITMENTS, UNDERSTANDINGS