ACTIONS FOR, OR ON BEHALF OF, THE COMPANY OR ANY OF ITS SUBSIDIARIES (I) USED
ANY CORPORATE FUNDS FOR ANY UNLAWFUL CONTRIBUTION, GIFT, ENTERTAINMENT OR OTHER
UNLAWFUL EXPENSES RELATING TO POLITICAL ACTIVITY; (II) MADE ANY DIRECT OR
INDIRECT UNLAWFUL PAYMENT TO ANY FOREIGN OR DOMESTIC GOVERNMENT OFFICIAL OR
EMPLOYEE FROM CORPORATE FUNDS; (III) VIOLATED OR IS IN VIOLATION OF ANY
PROVISION OF THE U.S. FOREIGN CORRUPT PRACTICES ACT OF 1977, AS AMENDED; OR (IV)
MADE ANY UNLAWFUL BRIBE, REBATE, PAYOFF, INFLUENCE PAYMENT, KICKBACK OR OTHER
UNLAWFUL PAYMENT TO ANY FOREIGN OR DOMESTIC GOVERNMENT OFFICIAL OR EMPLOYEE.
(P)
SARBANES-OXLEY ACT.
THE COMPANY IS IN COMPLIANCE WITH ANY AND ALL
APPLICABLE REQUIREMENTS OF THE SARBANES-OXLEY ACT OF 2002 THAT ARE EFFECTIVE AS
OF THE DATE HEREOF, AND ANY AND ALL APPLICABLE RULES AND REGULATIONS PROMULGATED
BY THE SEC THEREUNDER THAT ARE EFFECTIVE AS OF THE DATE HEREOF.
(Q)
TRANSACTIONS WITH AFFILIATES.
EXCEPT AS SET FORTH IN THE SEC
DOCUMENTS FILED AT LEAST TEN (10) DAYS PRIOR TO THE DATE HEREOF AND OTHER THAN
THE GRANT OF STOCK OPTIONS DISCLOSED ON SCHEDULE 3(Q), NONE OF THE OFFICERS,
DIRECTORS OR EMPLOYEES OF THE COMPANY OR ANY OF ITS SUBSIDIARIES IS PRESENTLY A
PARTY TO ANY TRANSACTION WITH THE COMPANY OR ANY OF ITS SUBSIDIARIES (OTHER THAN
FOR ORDINARY COURSE SERVICES AS EMPLOYEES, OFFICERS OR DIRECTORS), INCLUDING ANY
CONTRACT, AGREEMENT OR OTHER ARRANGEMENT PROVIDING FOR THE FURNISHING OF
SERVICES TO OR BY, PROVIDING FOR RENTAL OF REAL OR PERSONAL PROPERTY TO OR FROM,
OR OTHERWISE REQUIRING PAYMENTS TO OR FROM ANY SUCH OFFICER, DIRECTOR OR
EMPLOYEE OR, TO THE KNOWLEDGE OF THE COMPANY OR ANY OF ITS SUBSIDIARIES, ANY
CORPORATION, PARTNERSHIP, TRUST OR OTHER ENTITY IN WHICH ANY SUCH OFFICER,
DIRECTOR, OR EMPLOYEE HAS A SUBSTANTIAL INTEREST OR IS AN OFFICER, DIRECTOR,
TRUSTEE OR PARTNER.
10
(R)
EQUITY CAPITALIZATION.
AS OF THE DATE HEREOF, THE AUTHORIZED
CAPITAL STOCK OF THE COMPANY CONSISTS OF (I) 100,000,000 SHARES OF COMMON STOCK,
OF WHICH AS OF THE DATE HEREOF, 21,576,544 ARE ISSUED AND OUTSTANDING, 2,710,900
SHARES ARE RESERVED FOR ISSUANCE PURSUANT TO THE COMPANY'S STOCK OPTION AND
PURCHASE PLANS, 3,400,000 SHARES ARE RESERVED FOR ISSUANCE PURSUANT TO THE
RELATIVITY AGREEMENT (AS DEFINED BELOW) AND 984,284 SHARES ARE RESERVED FOR
ISSUANCE PURSUANT TO SECURITIES (OTHER THAN THE AFOREMENTIONED OPTIONS, THE
NOTES AND THE WARRANTS) EXERCISABLE OR EXCHANGEABLE FOR, OR CONVERTIBLE INTO,
SHARES OF COMMON STOCK AND (II) 25,000,000 SHARES OF PREFERRED STOCK, PAR VALUE
$0.0001 PER SHARE, OF WHICH, AS OF THE DATE HEREOF, NONE ARE ISSUED AND
OUTSTANDING.
ALL OF SUCH OUTSTANDING SHARES HAVE BEEN, OR UPON ISSUANCE WILL
BE, VALIDLY ISSUED AND ARE FULLY PAID AND NONASSESSABLE.
EXCEPT AS DISCLOSED IN
SCHEDULE 3(R): (I) NONE OF THE COMPANY'S CAPITAL STOCK IS SUBJECT TO PREEMPTIVE
RIGHTS OR ANY OTHER SIMILAR RIGHTS OR ANY LIENS OR ENCUMBRANCES SUFFERED OR
PERMITTED BY THE COMPANY; (II) THERE ARE NO OUTSTANDING OPTIONS, WARRANTS,
SCRIP, RIGHTS TO SUBSCRIBE TO, CALLS OR COMMITMENTS OF ANY CHARACTER WHATSOEVER
RELATING TO, OR SECURITIES OR RIGHTS