PROPERTY OR ASSET OF THE COMPANY OR THE SUBSIDIARY IS BOUND OR AFFECTED; EXCEPT
IN THE CASE OF EACH OF CLAUSES (II) AND (III), SUCH AS COULD NOT, INDIVIDUALLY
OR IN THE AGGREGATE, HAVE OR REASONABLY BE EXPECTED TO RESULT IN A MATERIAL
ADVERSE EFFECT.
(E)
FILINGS, CONSENTS AND APPROVALS.
OTHER THAN AS SET FORTH IN
SECTION 2.2(C) WITH RESPECT TO THE NEED FOR STOCKHOLDER APPROVAL OF THE ISSUANCE
OF THE SHARES, 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) THE FILING WITH THE COMMISSION OF THE REGISTRATION STATEMENT IN ACCORDANCE
WITH THE REQUIREMENTS OF THE REGISTRATION RIGHTS AGREEMENT, (II) THE FILING OF
FORM D WITH THE COMMISSION AND SUCH FILINGS REQUIRED BY STATE SECURITIES LAWS,
WHICH THE COMPANY WILL PROMPTLY AND TIMELY, AND IN ANY EVENT PRIOR TO THE
EFFECTIVENESS DATE UNDER THE REGISTRATION STATEMENT, MAKE, (III) THE
APPLICATION(S) TO EACH TRADING MARKET FOR THE LISTING OF THE SHARES OF COMMON
STOCK TO BE SOLD HEREUNDER FOR TRADING THEREON IN THE TIME AND MANNER REQUIRED
THEREBY, (IV) THE FILINGS REQUIRED IN ACCORDANCE WITH SECTION 4.4, AND (V) SUCH
OTHER FILINGS AS MAY BE REQUIRED FOLLOWING THE CLOSING DATE UNDER THE SECURITIES
ACT AND THE EXCHANGE ACT.
(F)
ISSUANCE OF THE SECURITIES.
THE SHARES HAVE BEEN DULY AUTHORIZED
AND, WHEN ISSUED AND PAID FOR IN ACCORDANCE WITH THE TRANSACTION DOCUMENTS, WILL
BE DULY AND VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE, FREE AND CLEAR OF ALL
LIENS.
THE COMPANY HAS RESERVED FROM ITS DULY AUTHORIZED CAPITAL STOCK ALL OF
THE SHARES ISSUABLE PURSUANT TO THIS AGREEMENT.
(G)
CAPITALIZATION.
THE CAPITALIZATION OF THE COMPANY CONFORMS AS TO
LEGAL MATTERS TO THE DESCRIPTION THEREOF CONTAINED IN THE COMPANY'S MOST RECENT
PERIODIC REPORT FILED WITH THE COMMISSION.
NO SECURITIES OF THE COMPANY ARE
ENTITLED TO PREEMPTIVE OR SIMILAR RIGHTS, AND 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 SHARES, THE SHARES OF COMMON
STOCK AND OPTIONS OR WARRANTS TO PURCHASE SHARES OF COMMON STOCK TO BE ISSUED TO
STOCKHOLDERS, OPTIONHOLDERS AND WARRANTHOLDERS OF TORNADO PURSUANT TO THE
TORNADO MERGER AGREEMENT, AND EXCEPT AS DESCRIBED IN THE SEC REPORTS, THERE ARE
NO OUTSTANDING OPTIONS, WARRANTS, SCRIP 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 OR
8
ARRANGEMENTS BY WHICH THE COMPANY OR THE SUBSIDIARY IS OR MAY BECOME BOUND TO
ISSUE ADDITIONAL SHARES OF COMMON STOCK, OR SECURITIES