THE CASE OF EACH OF CLAUSES (II) AND (III), SUCH
AS HAS NOT HAD OR COULD NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL
ADVERSE EFFECT.
(E)
FILINGS, CONSENTS AND APPROVALS.
THE
COMPANY IS NOT REQUIRED TO OBTAIN ANY CONSENT, WAIVER, AUTHORIZATION OR ORDER
OF, GIVE ANY NOTICE TO, OR MAKE ANY FILING OR REGISTRATION WITH, ANY COURT OR
OTHER FEDERAL, STATE, LOCAL OR OTHER GOVERNMENTAL AUTHORITY OR OTHER PERSON IN
CONNECTION WITH THE EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY OF THE
TRANSACTION DOCUMENTS, OTHER THAN (I) FILINGS REQUIRED PURSUANT TO SECTION 4.6
OF THIS AGREEMENT, (II) THE FILING WITH THE COMMISSION OF THE REGISTRATION
STATEMENT, (III) APPLICATION(S) TO EACH APPLICABLE TRADING MARKET FOR THE
LISTING OF THE SHARES AND WARRANT SHARES FOR TRADING THEREON IN THE TIME AND
MANNER REQUIRED THEREBY, AND (IV) THE FILING OF FORM D WITH THE COMMISSION AND
SUCH FILINGS AS ARE REQUIRED TO BE MADE UNDER
7
APPLICABLE STATE SECURITIES LAWS ((I) THROUGH (IV) ABOVE ARE COLLECTIVELY
REFERRED TO HEREIN AS THE "REQUIRED APPROVALS").
(F)
ISSUANCE OF THE SECURITIES.
THE SHARES
AND WARRANTS ARE 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 IMPOSED BY THE COMPANY OTHER THAN
RESTRICTIONS ON TRANSFER PROVIDED FOR IN THE TRANSACTION DOCUMENTS.
THE WARRANT
SHARES, WHEN ISSUED IN ACCORDANCE WITH THE TERMS OF THE TRANSACTION DOCUMENTS,
WILL BE VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE, FREE AND CLEAR OF ALL
LIENS IMPOSED BY THE COMPANY.
THE COMPANY HAS RESERVED FROM ITS DULY AUTHORIZED
CAPITAL STOCK THE MAXIMUM NUMBER OF SHARES OF COMMON STOCK ISSUABLE PURSUANT TO
THIS AGREEMENT AND THE WARRANTS.
(G)
CAPITALIZATION.
THE CAPITALIZATION OF THE
COMPANY AS OF NOVEMBER 5, 2003 IS AS DESCRIBED ON SCHEDULE 3.1(G).
THE COMPANY
HAS NOT ISSUED ANY CAPITAL STOCK SINCE SUCH DATE 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 PLAN AND PURSUANT TO THE CONVERSION OR EXERCISE OF
OUTSTANDING COMMON STOCK EQUIVALENTS.
EXCEPT AS SET FORTH ON SCHEDULE 3.1(G),
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 SET FORTH ON
SCHEDULE 3.1(G) AND EXCEPT AS A RESULT OF THE PURCHASE AND SALE OF THE
SECURITIES, THERE ARE NO OUTSTANDING OPTIONS, WARRANTS, SCRIPT 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 SET