AMENDMENTS OR SUPPLEMENTS THERETO, AT TIME THE
PROSPECTUS OR ANY AMENDMENT OR SUPPLEMENT THERETO WAS ISSUED AND AT THE CLOSING
DATE, CONFORMED AND WILL CONFORM IN ALL MATERIAL RESPECTS TO THE REQUIREMENTS OF
THE SECURITIES ACT AND DID NOT AND WILL NOT CONTAIN AN UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE,
NOT MISLEADING. THE OFFERING AND SALE OF THE SECURITIES (THE "OFFERING") ARE
BEING MADE PURSUANT THE REGISTRATION STATEMENT (INCLUDING THE PROSPECTUS
CONTAINED THEREIN (THE "BASE PROSPECTUS")) FILED BY THE COMPANY WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION"), (2) IF APPLICABLE,
CERTAIN "FREE WRITING PROSPECTUSES" (AS THAT TERM IS DEFINED IN RULE 405 UNDER
THE SECURITIES ACT), THAT HAVE BEEN OR WILL BE FILED WITH THE COMMISSION AND
DELIVERED TO THE PURCHASERS ON OR PRIOR TO THE DATE HEREOF, AND (3) A PROSPECTUS
SUPPLEMENT (THE "PROSPECTUS SUPPLEMENT" AND TOGETHER WITH THE BASE PROSPECTUS,
THE "PROSPECTUS") CONTAINING CERTAIN SUPPLEMENTAL INFORMATION REGARDING THE
SECURITIES AND TERMS OF THE OFFERING THAT HAVE BEEN OR WILL BE FILED WITH THE
COMMISSION AND HAS BEEN OR WILL BE DELIVERED TO THE PURCHASERS (OR MADE
AVAILABLE TO THE PURCHASERS BY THE FILING BY THE COMPANY OF AN ELECTRONIC
VERSION THEREOF WITH THE COMMISSION ON OR PRIOR TO THE TIME THE PURCHASERS HAVE
EXECUTED THIS AGREEMENT, OTHER THAN THE PROSPECTUS SUPPLEMENT WHICH SHALL BE
FILED WITH THE COMMISSION NO LATER THAN TWO (2) DAYS SUBSEQUENT TO THE EXECUTION
OF THIS AGREEMENT).
(G)
CAPITALIZATION.
THE CAPITALIZATION OF THE COMPANY IS AS SET FORTH
ON 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 PLANS AND PURSUANT TO THE CONVERSION AND/OR EXERCISE OF
COMMON STOCK EQUIVALENTS OUTSTANDING AS OF THE DATE OF THE MOST RECENTLY FILED
PERIODIC REPORT UNDER THE EXCHANGE ACT.
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 SET
FORTH ON 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
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 ARRANGEMENTS BY WHICH THE COMPANY OR ANY SUBSIDIARY IS OR MAY
BECOME BOUND TO ISSUE ADDITIONAL SHARES OF COMMON STOCK OR COMMON STOCK
EQUIVALENTS.
THE ISSUANCE AND SALE OF THE SECURITIES WILL NOT OBLIGATE THE
COMPANY TO ISSUE SHARES OF COMMON STOCK OR OTHER SECURITIES TO ANY PERSON