PRE-EMPTIVE RIGHTS AND WERE ISSUED IN FULL COMPLIANCE WITH
APPLICABLE STATE AND FEDERAL SECURITIES LAW AND ANY RIGHTS OF THIRD PARTIES.
EXCEPT AS DESCRIBED ON SCHEDULE 4.3, NO PERSON IS ENTITLED TO PRE-EMPTIVE OR
SIMILAR STATUTORY OR CONTRACTUAL RIGHTS WITH RESPECT TO ANY EQUITY SECURITIES OF
THE COMPANY OR ANY COMPANY SUBSIDIARY.
EXCEPT AS DESCRIBED ON SCHEDULE 4.3,
THERE ARE NO OUTSTANDING WARRANTS, OPTIONS, CONVERTIBLE SECURITIES OR OTHER
RIGHTS, AGREEMENTS OR ARRANGEMENTS OF ANY CHARACTER UNDER WHICH THE COMPANY OR
ANY OF ITS SUBSIDIARIES IS OR MAY BE OBLIGATED TO ISSUE ANY EQUITY SECURITIES OF
ANY KIND AND EXCEPT AS CONTEMPLATED BY THIS AGREEMENT, NEITHER THE COMPANY NOR
ANY OF ITS SUBSIDIARIES IS CURRENTLY IN NEGOTIATIONS FOR THE ISSUANCE OF ANY
EQUITY SECURITIES OF ANY KIND.
EXCEPT AS DESCRIBED ON SCHEDULE 4.3 AND EXCEPT
FOR THE AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT, THERE ARE NO VOTING
AGREEMENTS, BUY-SELL AGREEMENTS, OPTION OR RIGHT OF FIRST PURCHASE AGREEMENTS OR
OTHER AGREEMENTS OF ANY KIND AMONG THE COMPANY OR ANY COMPANY SUBSIDIARY AND ANY
OF THE SECURITYHOLDERS OF THE COMPANY OR ANY COMPANY SUBSIDIARY RELATING TO THE
SECURITIES OF THE COMPANY OR ANY COMPANY SUBSIDIARY HELD BY THEM.
EXCEPT AS
DESCRIBED ON SCHEDULE 4.3, NO PERSON HAS THE RIGHT TO REQUIRE THE COMPANY OR ANY
COMPANY SUBSIDIARY TO REGISTER ANY SECURITIES OF THE COMPANY UNDER THE
SECURITIES ACT, WHETHER ON A DEMAND BASIS OR IN CONNECTION WITH THE REGISTRATION
OF SECURITIES OF THE COMPANY OR ANY COMPANY SUBSIDIARY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF ANY OTHER PERSON.
(B)
THE ISSUANCE AND SALE OF THE SERIES C SHARES
AND THE WARRANTS HEREUNDER WILL NOT OBLIGATE THE COMPANY TO ISSUE ANY EQUITY
SECURITIES TO ANY OTHER PERSON (OTHER THAN THE PURCHASERS) AND WILL NOT RESULT
IN THE ADJUSTMENT OF THE EXERCISE, CONVERSION, EXCHANGE OR RESET PRICE OF ANY
OUTSTANDING SECURITY.
(C)
EXCEPT FOR THE RIGHTS PLAN, THE COMPANY
DOES NOT HAVE OUTSTANDING STOCKHOLDER PURCHASE RIGHTS OR A "POISON PILL" OR ANY
SIMILAR ARRANGEMENT IN EFFECT GIVING ANY PERSON THE RIGHT TO PURCHASE ANY EQUITY
INTEREST IN THE COMPANY UPON THE OCCURRENCE OF CERTAIN EVENTS.
THE ISSUANCE AND
SALE OF THE SECURITIES HEREUNDER WILL NOT TRIGGER ANY OF THE PROVISIONS OF THE
RIGHTS PLAN.
4.4
Private Sale; Voting Agreements.
Assuming the
accuracy of each Purchaser's representations contained herein, neither the
offer, sale and issuance of the Series C Shares and Warrants hereunder nor the
issuance and delivery of any Conversion Shares or Warrant Shares
13
(assuming that the Conversion Shares and Warrant Shares are issued to such
Purchaser) requires registration under the Securities Act or any state
securities laws.
4.5
SEC REPORTS; FINANCIAL STATEMENTS.
(A)
THE COMPANY HAS FILED ALL FORMS, REPORTS
AND DOCUMENTS REQUIRED TO BE FILED BY IT WITH THE SEC SINCE MARCH 15, 2005
(ASSUMING, FOR THE PURPOSES OF THIS SECTION 4.5, THE COMPANY HAS BEEN SUBJECT TO
THE FILING REQUIREMENTS OF THE EXCHANGE ACT SINCE MARCH 15, 2005), AND HAS MADE
AVAILABLE TO THE PURCHASERS IN THE FORM