OF UNDERLYING SHARES
TO ENABLE IT TO COMPLY WITH ITS EXERCISE OBLIGATIONS UNDER THE WARRANTS.
(G)
CAPITALIZATION.
THE NUMBER OF SHARES AND
TYPE OF ALL AUTHORIZED, ISSUED AND OUTSTANDING CAPITAL STOCK, OPTIONS AND OTHER
SECURITIES OF THE COMPANY (WHETHER OR NOT PRESENTLY CONVERTIBLE INTO, OR
EXERCISABLE OR EXCHANGEABLE FOR, SHARES OF CAPITAL STOCK OF THE COMPANY) IS SET
FORTH IN SCHEDULE 3.1(G).
ALL OUTSTANDING SHARES OF CAPITAL STOCK OF THE
COMPANY ARE DULY AUTHORIZED, VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE AND
HAVE BEEN ISSUED IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS.
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 SET FORTH IN SCHEDULE 3.1(G).
EXCEPT AS A
RESULT OF THE PURCHASE AND SALE OF THE SECURITIES AND EXCEPT AS DISCLOSED IN
SCHEDULE 3.1(G), THERE ARE NO OUTSTANDING OPTIONS, WARRANTS, SCRIPT RIGHTS TO
SUBSCRIBE TO, CALLS OR COMMITMENTS OF ANY CHARACTER
5
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
INTO OR EXERCISABLE OR EXCHANGEABLE FOR SHARES OF COMMON STOCK.
EXCEPT AS
DISCLOSED IN SCHEDULE 3.1(G), THERE ARE NO ANTI-DILUTION OR PRICE ADJUSTMENT
PROVISIONS CONTAINED IN ANY SECURITY ISSUED BY THE COMPANY (OR IN ANY AGREEMENT
PROVIDING RIGHTS TO SECURITY HOLDERS) AND THE ISSUANCE 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 PURCHASERS) AND WILL NOT RESULT
IN A RIGHT OF ANY HOLDER OF COMPANY SECURITIES TO ADJUST THE EXERCISE,
CONVERSION, NUMBER OF ISSUABLE SHARES, EXCHANGE OR RESET PRICE UNDER SUCH
SECURITIES.
THE COMPANY WILL NOT AUTHORIZE THE ISSUANCE OF ANY ADDITIONAL
SECURITIES UNLESS THERE ARE SUFFICIENT AUTHORIZED SHARES OF COMMON STOCK (OR ANY
SUCCESSOR SECURITY THERETO) AVAILABLE, TAKING INTO ACCOUNT ALL POTENTIAL
ADJUSTMENTS OR ANTI-DILUTION PROVISIONS IN SUCH SECURITIES, TO SATISFY THE
RIGHTS OF THE PURCHASERS TO ACQUIRE THE SECURITIES AND UNDERLYING SECURITIES IN
THE EVENT OF EXERCISE OF THE WARRANT.
FURTHER, IF AT ANY TIME THE NUMBER OF
SHARES OF COMMON STOCK AVAILABLE FOR ISSUANCE WERE INSUFFICIENT FOR ANY REASON
TO SATISFY SUCH RIGHTS OF THE PURCHASERS, THE COMPANY WOULD TAKE IMMEDIATE
ACTION TO CAUSE SUFFICIENT AUTHORIZED SHARES TO BE AUTHORIZED OR EFFECT A
REVERSE STOCK SPLIT TO PROVIDE SUFFICIENT SHARES TO BE AVAILABLE.
(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 (2) YEARS PRECEDING THE DATE HEREOF (OR SUCH SHORTER PERIOD AS THE
COMPANY WAS REQUIRED BY