FOR,
SECURITIES HAVING THE RIGHT TO VOTE) ON ANY MATTERS ON WHICH STOCKHOLDERS OF THE
COMPANY MAY VOTE ISSUED, RESERVED FOR ISSUANCE OR OUTSTANDING. THERE ARE NO
RESTRICTIONS ON THE TRANSFER OF CAPITAL STOCK OF THE COMPANY IMPOSED BY THE
AMENDED AND RESTATED CERTIFICATE, THE BY-LAWS, ANY AGREEMENT TO WHICH THE
COMPANY IS A PARTY, OR ANY ORDER OF ANY COURT OR ANY GOVERNMENTAL AUTHORITIES TO
WHICH THE COMPANY IS SUBJECT.
THERE ARE NO OBLIGATIONS OF THE COMPANY OR ANY OF
ITS SUBSIDIARIES TO REPURCHASE, REDEEM OR OTHERWISE ACQUIRE ANY SHARES OF
CAPITAL STOCK, OTHER VOTING SECURITIES OR EQUITY INTERESTS OF THE COMPANY OR ANY
OF ITS SUBSIDIARIES.
(C)
AS OF JULY 21, 2006, 4,566,268 SHARES OF COMMON STOCK WERE
RESERVED AND AVAILABLE FOR ISSUANCE PURSUANT TO THE COMPANY'S AMENDED AND
RESTATED 2002 STOCK INCENTIVE PLAN, 2004 STOCK INCENTIVE PLAN, AS AMENDED, AND
2004 EMPLOYEE STOCK PURCHASE PLAN (THE "ESPP") (SUCH PLANS, COLLECTIVELY, THE
"COMPANY STOCK PLANS"), OF WHICH 2,523,927 SHARES OF COMMON STOCK WERE SUBJECT
TO OUTSTANDING OPTIONS TO PURCHASE SHARES OF COMMON STOCK FROM THE COMPANY
PURSUANT TO THE COMPANY STOCK PLANS OR OTHERWISE (OTHER THAN RIGHTS UNDER THE
ESPP) (TOGETHER WITH ANY OTHER STOCK OPTIONS GRANTED AFTER JULY 21, 2006, THE
"COMPANY STOCK OPTIONS").
OTHER THAN AS SET FORTH IN THE PRECEDING SENTENCE,
THERE ARE NO OTHER SHARES OF COMMON STOCK RESERVED AND AVAILABLE FOR ISSUANCE.
THERE IS NO CAPITAL STOCK OF THE COMPANY HELD BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES.
ALL OF THE SERIES A PREFERRED STOCK IS RESERVED FOR ISSUANCE
UNDER THE SHAREHOLDER RIGHTS PLAN AND IS THE ONLY PREFERRED STOCK RESERVED OR
AVAILABLE FOR ISSUANCE.
(D)
EXCEPT AS REFLECTED IN THE COMPANY'S AUDITED FINANCIAL STATEMENTS
AS SET FORTH IN THE COMPANY SEC DOCUMENTS, THE PER SHARE EXERCISE PRICE OF EACH
COMPANY STOCK OPTION WAS NOT LESS THAN THE FAIR MARKET VALUE OF A SHARE OF
COMMON STOCK ON THE APPLICABLE GRANT DATE.
4
(E)
EXCEPT AS SET FORTH IN THE COMPANY'S PUBLIC FILINGS, THE COMPANY'S
SCHEDULE 14A FILED BY THE REGISTRANT ON APRIL 28, 2006 (AS AMENDED ON MAY 5,
2006), AND THE COMPANY'S SCHEDULE 14A FILED BY THE REGISTRANT ON APRIL 20, 2005
(IN EACH CASE INCLUDING THE EXHIBITS THERETO), THE COMPANY IS NOT A PARTY TO OR
SUBJECT TO ANY AGREEMENT OR UNDERSTANDING RELATING TO, AND TO THE COMPANY'S
KNOWLEDGE THERE IS NO AGREEMENT OR UNDERSTANDING BETWEEN ANY PERSONS WHICH
RELATES TO, THE VOTING OF SHARES OF CAPITAL STOCK OF THE COMPANY OR THE GIVING
OF WRITTEN CONSENTS BY A STOCKHOLDER OR DIRECTOR OF THE COMPANY.
3.3
SUBSIDIARIES.
EXCEPT AS SET FORTH IN THE COMPANY'S PUBLIC FILINGS:
(A)
THE COMPANY DOES NOT PRESENTLY OWN OR CONTROL, DIRECTLY OR
INDIRECTLY, ANY OTHER CORPORATION, PARTNERSHIP, JOINT VENTURE, ASSOCIATION OR
OTHER BUSINESS ENTITY.
EACH SUBSIDIARY IS DULY ORGANIZED AND EXISTING UNDER THE
LAWS OF ITS JURISDICTION OR ORGANIZATION, IS IN GOOD STANDING UNDER SUCH LAWS
AND IS DULY QUALIFIED TO DO BUSINESS AS A FOREIGN CORPORATION IN EACH
JURISDICTION IN WHICH A