AGREEMENT, (II) FILINGS REQUIRED BY STATE SECURITIES LAWS, (III) THE
FILING OF A NOTICE OF SALE OF SECURITIES ON FORM D WITH THE COMMISSION UNDER
REGULATION D OF THE SECURITIES ACT, (IV) THE FILINGS REQUIRED IN ACCORDANCE WITH
SECTION 4.7 AND 4.10 AND (V) THOSE THAT HAVE BEEN MADE OR OBTAINED PRIOR TO THE
DATE OF THIS AGREEMENT.
(F)
ISSUANCE OF THE SECURITIES.
ON OR PRIOR
TO THE CLOSING DATE, THE SECURITIES WILL BE 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.
BY THE
CLOSING DATE, THE COMPANY SHALL HAVE RESERVED FROM ITS DULY AUTHORIZED CAPITAL
STOCK A NUMBER OF SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THE SHARES
AND UPON EXERCISE OF THE WARRANTS, WHICH NUMBER OF RESERVED SHARES IS NOT LESS
THAN THE REQUIRED MINIMUM CALCULATED AS OF THE DATE HEREOF.
(G)
CAPITALIZATION.
THE NUMBER OF SHARES AND
TYPE OF ALL AUTHORIZED, ISSUED AND OUTSTANDING CAPITAL STOCK OF THE COMPANY, AND
ALL SHARES OF COMMON STOCK RESERVED FOR ISSUANCE UNDER THE COMPANY'S VARIOUS
OPTION AND INCENTIVE PLANS, IS SPECIFIED IN SCHEDULE 3.1(G).
EXCEPT AS
SPECIFIED IN SCHEDULE 3.1(G), NO SECURITIES OF THE COMPANY ARE ENTITLED TO
PREEMPTIVE OR SIMILAR RIGHTS, AND NO PERSON HAS ANY RIGHT OF FIRST REFUSAL,
PREEMPTIVE RIGHT, RIGHT
10
OF PARTICIPATION, OR ANY SIMILAR RIGHT TO PARTICIPATE IN THE TRANSACTIONS
CONTEMPLATED BY THE TRANSACTION DOCUMENTS.
EXCEPT AS SPECIFIED IN
SCHEDULE 3.1(G), 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 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 SPECIFIED IN SCHEDULE 3.1(G), THE ISSUE AND SALE OF THE
SECURITIES WILL NOT, IMMEDIATELY OR WITH THE PASSAGE OF TIME, OBLIGATE THE
COMPANY TO ISSUE SHARES OF COMMON STOCK OR OTHER SECURITIES TO ANY PERSON (OTHER
THAN THE INVESTORS) 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.
(H)
SEC REPORTS; FINANCIAL STATEMENTS.
THE
COMPANY HAS FILED ALL REPORTS, FORMS OR OTHER INFORMATION 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 TWELVE MONTHS PRECEDING THE DATE HEREOF
(OR SUCH SHORTER PERIOD AS THE COMPANY WAS REQUIRED BY LAW TO FILE SUCH REPORTS)
(THE FOREGOING MATERIALS, INCLUDING ANY AMENDMENTS THERETO, BEING COLLECTIVELY
REFERRED TO HEREIN AS THE "SEC REPORTS" AND, TOGETHER WITH THE SCHEDULES TO THIS
AGREEMENT (IF ANY), THE "DISCLOSURE MATERIALS") ON A TIMELY BASIS OR HAS TIMELY
FILED A VALID EXTENSION