THE PURCHASERS
REQUIRE SHAREHOLDER APPROVAL TO BE OBTAINED PURSUANT TO ANY OF THE TRANSACTION
DOCUMENTS (COLLECTIVELY, THE "REQUIRED APPROVALS").
(F)
ISSUANCE OF THE SECURITIES. THE SECURITIES ARE 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
(OTHER THAN RESTRICTIONS UNDER APPLICABLE SECURITIES LAWS AND AS SET FORTH
HEREIN), AND SHALL NOT BE SUBJECT TO PREEMPTIVE RIGHTS OR SIMILAR RIGHTS OF
SHAREHOLDERS. ASSUMING THE ACCURACY OF THE PURCHASERS REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 3.2, THE SECURITIES WILL BE ISSUED IN COMPLIANCE
WITH APPLICABLE SECURITIES LAWS, RULES AND REGULATIONS.
THE COMPANY HAS
RESERVED FROM ITS DULY AUTHORIZED CAPITAL STOCK THE MAXIMUM NUMBER OF SHARES OF
COMMON STOCK ISSUABLE UNDER THE TRANSACTION DOCUMENTS.
(G)
CAPITALIZATION.
EXCLUDING THE SECURITIES, 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 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 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 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 OR
EXCHANGEABLE INTO SHARES OF COMMON STOCK.
EXCEPT AS SET FORTH ON SCHEDULE
3.1(G), THE ISSUE 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, EXCHANGE OR RESET PRICE UNDER SUCH
SECURITIES.
TO THE KNOWLEDGE OF THE COMPANY, EXCEPT AS SPECIFICALLY DISCLOSED
IN SCHEDULE 3.1(G), NO PERSON OR GROUP OF RELATED PERSONS BENEFICIALLY OWNS (AS
DETERMINED PURSUANT TO RULE 13D-3 UNDER THE EXCHANGE ACT), OR HAS THE RIGHT TO
ACQUIRE, BY AGREEMENT WITH OR BY OBLIGATION BINDING UPON THE COMPANY,
9
beneficial ownership of in excess of 5% of the outstanding Common Stock,
ignoring for such purposes any limitation on the number of shares of Common
Stock that may be owned at any single time.
(H)
SEC REPORTS; FINANCIAL STATEMENTS.