PURPORTING TO ENJOIN OR RESTRAIN THE EXECUTION, DELIVERY OR
PERFORMANCE OF THIS AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS.
15
3.6
COMPLIANCE WITH LAWS.
(A)
THE COMPANY AND EACH SUBSIDIARY IS IN COMPLIANCE IN ALL MATERIAL
RESPECTS WITH ALL REQUIREMENTS OF LAW AND ALL ORDERS ISSUED BY ANY COURT OR
GOVERNMENTAL AUTHORITY AGAINST THE COMPANY OR ANY SUBSIDIARY. TO THE COMPANY'S
KNOWLEDGE, THERE IS NO EXISTING OR PROPOSED REQUIREMENT OF LAW WHICH COULD
REASONABLY BE EXPECTED TO PROHIBIT OR RESTRICT THE COMPANY OR ANY SUBSIDIARY
FROM, OR OTHERWISE MATERIALLY ADVERSELY EFFECT THE COMPANY OR ANY SUBSIDIARY IN,
CONDUCTING ITS BUSINESS IN ANY JURISDICTION IN WHICH IT NOW CONDUCTS OR PROPOSES
TO CONDUCT ITS BUSINESS.
(B)
THE COMMON STOCK IS REGISTERED PURSUANT TO SECTION 12(B) OF THE
EXCHANGE ACT, AND IS LISTED ON THE NASDAQ CAPITAL MARKET (THE "NASDAQ CAPITAL
MARKET"), AND NEITHER THE COMPANY NOR ANY SUBSIDIARY HAS TAKEN ANY ACTION
DESIGNED TO, OR REASONABLY LIKELY TO HAVE THE EFFECT OF, TERMINATING THE
REGISTRATION OF THE COMMON STOCK UNDER THE EXCHANGE ACT OR DELISTING THE COMMON
STOCK FROM THE NASDAQ CAPITAL MARKET. SUBJECT TO OBTAINING STOCKHOLDER APPROVAL,
THE COMPANY HAS COMPLIED WITH ALL REQUIREMENTS OF THE NASDAQ STOCK MARKET WITH
RESPECT TO THE ISSUANCE OF THE PURCHASED SHARES, THE WARRANTS, THE ADDITIONAL
WARRANTS AND ANY UNDERLYING SHARES. NEITHER THE COMPANY NOR ANY SUBSIDIARY HAS
TAKEN ANY ACTION DESIGNED TO OR THAT MIGHT REASONABLY BE EXPECTED TO CAUSE OR
RESULT IN UNLAWFUL MANIPULATION OF THE PRICE OF THE COMMON STOCK TO FACILITATE
THE SALE OR RESALE OF THE PURCHASED SHARES, THE WARRANTS, THE ADDITIONAL
WARRANTS OR ANY UNDERLYING SHARES.
(C)
(I) THE COMPANY AND EACH SUBSIDIARY HAS ALL MATERIAL LICENSES,
PERMITS AND APPROVALS OF ANY GOVERNMENTAL AUTHORITY (COLLECTIVELY, "PERMITS")
THAT ARE NECESSARY FOR THE CONDUCT OF THE BUSINESS OF THE COMPANY AND ITS
SUBSIDIARIES; (II) SUCH PERMITS ARE IN FULL FORCE AND EFFECT; AND (III) NO
MATERIAL VIOLATIONS ARE OR HAVE BEEN RECORDED IN RESPECT OF ANY PERMIT.
3.7
CAPITALIZATION.
(A)
(A)
AS OF THE DATE HEREOF, THE AUTHORIZED CAPITAL STOCK
OF THE COMPANY SHALL CONSIST OF (I) 100,000,000 SHARES OF COMMON STOCK,
49,786,024 SHARES OF WHICH ARE ISSUED AND OUTSTANDING AND (II) 1,000,000 SHARES
OF PREFERRED STOCK, PAR VALUE $0.01 PER SHARE, (A) 1,600 SHARES OF WHICH ARE
DESIGNATED AS SERIES B CONVERTIBLE PREFERRED STOCK, 340 SHARES OF WHICH ARE
ISSUED AND OUTSTANDING (AND CONVERTIBLE INTO 890,053 SHARES OF COMMON STOCK) AND
(B) 998,400 OF WHICH ARE UNDESIGNATED "BLANK CHECK" PREFERRED STOCK. AS OF THE
DATE OF THIS AGREEMENT, THE AGGREGATE NUMBER OF SHARES OF RESTRICTED STOCK AND
OPTIONS TO PURCHASE SHARES OF COMMON STOCK WHICH MAY BE ISSUED UNDER THE STOCK
OPTION PLANS IS 7,515,656, OF WHICH 4,878,329 ARE OUTSTANDING AS OF THE DATE
HEREOF (THE "OPTIONS") AND 3,999,545 OF WHICH OUTSTANDING OPTIONS HAVE VESTED AS
OF THE DATE HEREOF, AND THE AGGREGATE NUMBER OF SHARES OF COMMON STOCK THAT MAY
BE ISSUED UNDER THE COMPANY'S 401(K) PLAN IS 1,012,100. AS OF THE DATE HEREOF,
THE COMPANY