D WITH THE COMMISSION UNDER REGULATION D OF THE SECURITIES
ACT, (IV) THE FILINGS REQUIRED IN ACCORDANCE WITH SECTION 4.6 AND 4.11, (V) THE
COMPANY OBTAINING THE CONSENT OF ITS SHAREHOLDERS IN FAVOR OF THE PROPOSAL
PURSUANT TO SECTION 4.13, (VI) THE FILING OF A NOTIFICATION OF LISTING OF
ADDITIONAL SHARES WITH THE NASDAQ STOCK MARKET, AND (VII) THOSE THAT HAVE BEEN
MADE OR OBTAINED PRIOR TO THE DATE OF THIS AGREEMENT.
(F)
ISSUANCE OF THE SECURITIES.
ON OR PRIOR TO EACH CLOSING DATE, THE
SECURITIES ISSUABLE ON SUCH CLOSING DATE SHALL HAVE BEEN DULY AUTHORIZED AND,
WHEN ISSUED AND PAID FOR IN
7
accordance with the Transaction Documents, will be duly and validly issued,
fully paid and nonassessable, free and clear of all Liens.
On or prior to each
Closing Date, the Company shall have reserved from its duly authorized capital
stock the shares of Common Stock issuable on such Closing Date pursuant to this
Agreement and the Warrants in order to issue the Shares and the Warrant Shares.
(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 THE SEC REPORTS AND ON SCHEDULE 3.1(G).
EXCEPT AS SPECIFIED IN THE
SEC REPORTS AND ON 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 OF PARTICIPATION, OR ANY SIMILAR RIGHT TO PARTICIPATE IN
THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS.
EXCEPT AS SPECIFIED
IN THE SEC REPORTS AND 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
EXCHANGEABLE FOR, OR GIVING ANY PERSON ANY RIGHT TO SUBSCRIBE FOR OR ACQUIRE,
ANY SHARES OF CAPITAL STOCK OF THE COMPANY, OR CONTRACTS, COMMITMENTS,
UNDERSTANDINGS OR ARRANGEMENTS BY WHICH THE COMPANY OR ANY SUBSIDIARY IS OR MAY
BECOME BOUND TO ISSUE ADDITIONAL SHARES OF CAPITAL STOCK OF THE COMPANY, OR
SECURITIES OR RIGHTS CONVERTIBLE OR EXCHANGEABLE INTO SHARES OF CAPITAL STOCK OF
THE COMPANY.
THE ISSUE AND SALE OF THE SECURITIES WILL NOT, IMMEDIATELY OR WITH
THE PASSAGE OF TIME, OBLIGATE THE COMPANY TO ISSUE SHARES OF CAPITAL STOCK OF
THE COMPANY OR OTHER SECURITIES TO ANY PERSON (OTHER THAN THE INVESTORS UNDER
THE TRANSACTION DOCUMENTS) 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