Common use of Capitalization and Indebtedness Clause in Contracts

Capitalization and Indebtedness. As of the date hereof, the authorized capital stock of the Company consists of 25,000,000 shares of Common Stock, of which as of the date hereof 10,947,188 shares are issued and outstanding, and 6,500,000 shares of Preferred Stock, par value $.01 per share (the "Preferred Stock"), none of which as of the date hereof are issued or outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances created or agreed to by the Company. As of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock of the Company or its subsidiary or to issue options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or its subsidiary or by which the Company or subsidiary is or may become bound and (iii) there are no agreements or arrangements under which the Company or its subsidiary is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement) or which conflict in any way with the Registration Rights Agreement. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities as described in this Agreement. The Company has furnished to the Buyer true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto.

Capitalization and Indebtedness. As of the date hereofhereof and immediately prior to the issuance of the Common Shares and Warrants hereunder, the authorized capital stock of the Company consists of 25,000,000 80,000,000 shares of Common Stock, of which as of the date hereof 10,947,188 September 5, 2000, 46,980,246 shares are issued and outstanding, and 6,500,000 10,000,000 shares of Preferred Stock, par value $.01 per share (the "Preferred Stock"), none of which as of the date hereof no shares are issued or outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances created suffered or agreed to permitted by the Company. As Except as set forth on Schedule 3(c) or the SEC Documents, as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock of the Company or its subsidiary or to issue options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiaryany of the Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of the Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of the Subsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or its subsidiary any of the Subsidiaries or by which the Company or subsidiary any of the Subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or its subsidiary any of the Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement) or which conflict in any way with the Registration Rights Agreement). There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities as described in this Agreement. The Company has furnished to the Buyer true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto.

Capitalization and Indebtedness. (a) As of the date hereofhereof (and as of any Condition Precedent Date, as applicable), the authorized capital stock of the Company consists of 25,000,000 80,000,000 shares of Common Stock, of which as of the December 29, 2000 (and as of a date hereof 10,947,188 not more than 5 Business Days from any Condition Precedent Date, as applicable), 37,480,264 shares are were issued and outstanding, and 6,500,000 20,000,000 shares of Preferred Stock, par value $.01 per share preferred stock (the "Preferred Stock")) of the Company, none of which as of the date hereof (and as of a date not more than 5 Business Days from any Condition Precedent Date, as applicable), no shares are issued or outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens suffered or encumbrances created or agreed to permitted by the Company. As of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock Capital Stock of the Company or its subsidiaryCompany, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock Capital Stock of the Company Company, other than rights created pursuant to this Agreement or its subsidiary or pursuant to issue options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital the Company's stock of the Company or its subsidiaryoption plan and employee stock purchase plan, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or any of its subsidiary Subsidiaries or by which the Company or subsidiary any of its Subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its subsidiary Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act (except the Registration Rights as provided in this Agreement) or which conflict in any way with the Registration Rights Agreement). There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities as described in Common Stock pursuant to this Agreement. The Company has furnished to the Buyer Underwriter true and correct copies of the Company's Certificate articles of Incorporationincorporation, as amended and as in effect on the date hereof (the "Certificate Articles of Incorporation"), and the Company's By-lawsbylaws, as in effect on the date hereof (the "By-lawsBylaws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.

Capitalization and Indebtedness. As of the date hereof, the authorized capital stock of the Company Corporation consists of 25,000,000 (i) 100,000,000 shares of Common Stock, par value $0.001 per share, of which which, as of the date hereof 10,947,188 hereof, 8,657,913 shares are issued and outstanding, plus 29,575 additional shares authorized for issuance, but not yet issued and 6,500,000 outstanding, 1,853,767 shares of Common Stock are issuable upon the exercise of outstanding stock options and 1,179,413 shares of Common Stock are issuable upon the exercise of outstanding warrants and (ii) 10,000,000 shares of Preferred Stock, par value $.01 0.001 per share (share, of which, as of the "Preferred Stock")date hereof, none of which as of the date hereof are issued or and outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No Except as set forth in the Financing Agreement, no shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances created suffered or agreed to permitted by the CompanyCorporation. As Except as set forth in the Financing Agreement and as contemplated by this Warrant, as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock of the Company or its subsidiary or to issue options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company Corporation or any of its subsidiary, (ii) there are no outstanding debt securities, notes, credit agreementssubsidiaries, or other agreementscontracts, documents commitments, understandings or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or its subsidiary or arrangements by which the Company Corporation or subsidiary any of its subsidiaries is or may become bound to issue additional shares of capital stock of the Corporation or any of its subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Corporation or any of its subsidiaries, and (iiiii) there are no agreements or arrangements under which the Company Corporation or any of its subsidiary subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act (except the Registration Rights Agreement) or which conflict ). Except as set forth in any way with the Registration Rights Financing Agreement. There , there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any this Warrant or, upon exercise of this Warrant, the issuance of the Securities as described in this Agreement. The Company has furnished to the Buyer true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect theretoWarrant Shares.

Capitalization and Indebtedness. (a) As of the date hereof, the authorized capital stock of the Company consists of 25,000,000 75,000,000 shares of Common Stock, of which as of the date hereof 10,947,188 hereof, 38,313,803 shares are issued and outstanding, and 6,500,000 5,000,000 shares of Preferred Stock, par value $.01 per share preferred stock (the "Preferred Stock")) of the Company, none of which as of the date hereof no shares are issued or outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No Except as disclosed in the SEC Filings, no shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens suffered or encumbrances created or agreed to permitted by the Company. As Except as disclosed in the SEC Filings, as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock of the Company or its subsidiary or to issue options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock Capital Stock of the Company or any of its subsidiarySubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of Capital Stock of the Company or any of its Subsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or any of its subsidiary Subsidiaries or by which the Company or subsidiary any of its Subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its subsidiary Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act (except as provided in this Agreement). Except as disclosed in the Registration Rights Agreement) or which conflict in any way with the Registration Rights Agreement. There SEC Filings, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities Common Stock as described in this Agreement. The Company has furnished to the Buyer Underwriter true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.

Capitalization and Indebtedness. As of the date hereof------------------------------- hereof and immediately prior to the issuance of the Securities hereunder, the authorized capital stock of the Company consists of 25,000,000 100,000,000 shares of Common Stock, of which as of the date hereof 10,947,188 hereof, 25,563,111 shares are issued and outstanding, and 6,500,000 10,000,000 shares of Preferred Stock, par value $.01 per share (the "Preferred Stock"), none of which as of the date hereof no shares are issued or outstanding. All Except as set forth on Schedule 3(c), all of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No Except as set forth on Schedule 3(c), no shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances created suffered or agreed to permitted by the Company. As Except as set forth on Schedule 3(c), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock of the Company or its subsidiary or to issue options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its subsidiarysubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its subsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or any of its subsidiary subsidiaries or by which the Company or subsidiary any of its subsidiaries is or may become bound and (iii) except for the Company's securities which are the subject of registration statements which have been filed with the SEC as of the Closing Date, there are no agreements or arrangements under which the Company or any of its subsidiary subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except the Series F Registration Rights Agreement and the Series G Registration Rights Agreement) or which conflict in any way with the Registration Rights Agreement). There Except as disclosed on Schedule 3(c), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities as described in this Agreement. The Company has furnished to the Buyer true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto.

Capitalization and Indebtedness. As of the date hereof, the authorized capital stock of the Company consists of 25,000,000 60,000,000 shares of Common Stock, of which as of the date hereof 10,947,188 hereof, 21,335,061 shares are issued and outstanding, and 6,500,000 2,000,000 shares of Preferred Stock, par value $.01 per share preferred stock (the "Preferred Stock")) of the Company, none of which as of the date hereof hereof, no shares are issued or outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No Further, the Company's Float as of the date hereof consists of 7,441,378 shares of Common Stock. Except as set forth in Schedule 5.2, no shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens suffered or encumbrances created or agreed to permitted by the Company. As of the date hereof, except as set forth in Schedule 5.2, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock of the Company or its subsidiary or to issue options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock Capital Stock of the Company or any of its subsidiarySubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of 13 FUEL(TM)PATENTS PENDING RAMIUS SECURITIES, LLC Capital Stock of the Company or any of its Subsidiaries, other than rights created pursuant to this Agreement or pursuant to the Company's stock option plan and employee stock purchase plan, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or any of its subsidiary Subsidiaries or by which the Company or subsidiary any of its Subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its subsidiary Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act (except the Registration Rights as provided in this Agreement) or which conflict in any way with the Registration Rights Agreement). There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities as described in Common Stock pursuant to this Agreement. The Company has furnished to the Buyer Underwriter true and correct copies of the Company's Certificate articles of Incorporationincorporation, as amended and as in effect on the date hereof (the "Certificate Articles of Incorporation"), and the Company's By-lawsbylaws, as in effect on the date hereof (the "By-lawsBylaws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto.

Capitalization and Indebtedness. As of the date hereof, the authorized capital stock of the Company consists of 25,000,000 100,000,000 shares of Common Stock, par value $.001 -18- 19 per share, of which as of the date hereof 10,947,188 May 9, 2001, 34,388,445 shares are issued and outstanding, and 6,500,000 shares of Preferred Stock, par value $.01 per share (the "Preferred Stock"), none of which as of the date hereof are issued or outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances created suffered or agreed to permitted by the Company. As Except as contemplated by this Warrant or as previously disclosed to the Holder in writing (including in the Loan and Security Agreement), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock of the Company or its subsidiary or to issue optionsOptions, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its subsidiary, (ii) there are no outstanding debt securities, notes, credit agreementssubsidiaries, or other agreementscontracts, documents commitments, understandings or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or its subsidiary or arrangements by which the Company or subsidiary any of its subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its subsidiaries or Options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its subsidiaries, and (iiiii) there are no agreements or arrangements under which the Company or any of its subsidiary subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement) or which conflict in any way with the Registration Rights AgreementSecurities Act. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any this Warrant or, upon exercise of this Warrant, the Securities as described in this Agreement. The Company has furnished issuance of Warrant Shares, except for anti-dilution provisions which have been validly waived on or prior to the Buyer true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights respect of the holders thereof in respect theretoissuance of this Warrant and, upon exercise of this Warrant, the issuance of Warrant Shares.

Capitalization and Indebtedness. As of the date hereofhereof and immediately prior to the issuance of the Paradise Shares and the Paradise Warrants hereunder, the authorized capital stock of the Company consists of 25,000,000 75,000,000 shares of Common Stock, of which as of the date hereof 10,947,188 hereof, 9,658,841 shares are issued and outstanding, and 6,500,000 5,000,000 shares of Preferred Stock, par value $.01 per share (the "Preferred Stock"), none of which as of the date hereof no shares are issued or outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances created suffered or agreed to permitted by the Company. As Except as set forth on Schedule 3(c), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock of the Company or its subsidiary or to issue options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its subsidiarysubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its subsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or any of its subsidiary subsidiaries or by which the Company or subsidiary any of its subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its subsidiary subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement) or which conflict in any way with the Registration Rights Agreement). There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities as described in this Agreement. The Company has furnished to the Buyer true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto.

Capitalization and Indebtedness. As (a) The description of the date hereofcapital stock of the Company, the number of shares of authorized capital stock of the Company consists and the number of 25,000,000 shares of Common Stock, of which as capital stock of the date hereof 10,947,188 shares are Company that is issued and outstanding, outstanding are accurately and 6,500,000 shares of Preferred Stock, par value $.01 per share (completely described in all material respects in the "Preferred Stock"Registration Statement and the Prospectus or as set forth in Schedule 4.2(a), none of which as of the date hereof are issued or outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No Except as disclosed in the Registration Statement and the Prospectus or as set forth in Schedule 4.2(a), no shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens Liens suffered or encumbrances created or agreed to permitted by the Company. As of Except as disclosed in the date hereofRegistration Statement and the Prospectus or as set forth in Schedule 4.2(a), (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock of the Company or its subsidiary or to issue options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock Capital Stock of the Company or any of its subsidiarySubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of Capital Stock of the Company or any of its Subsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or any of its subsidiary Subsidiaries or by which the Company or subsidiary any of its Subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its subsidiary Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act (except as provided in this Agreement). Except as disclosed in the Registration Rights Agreement) Statement and the Prospectus or which conflict as set forth in any way with the Registration Rights Agreement. There Schedule 4.2(a), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities Common Stock as described in this Agreement. The Company has furnished to the Buyer Company's Registration Statement contains true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock, and payment of the Purchase Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Investor good and valid title to the Common Stock, free and clear of any Liens, and such Common Stock will be duly authorized, fully paid and nonassessable.

Capitalization and Indebtedness. As of the date hereof, the authorized capital stock of the Company consists of 25,000,000 100,000,000 shares of Common Stock, par value $.001 per share, of which as of the date hereof 10,947,188 May 9, 2001, 34,388,445 shares are issued and outstanding, and 6,500,000 shares of Preferred Stock, par value $.01 per share (the "Preferred Stock"), none of which as of the date hereof are issued or outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances created suffered or agreed to permitted by the Company. As Except as contemplated by this Warrant or as previously disclosed to the Holder in writing (including in the Loan and Security Agreement, which was reviewed by the Holder), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock of the Company or its subsidiary or to issue optionsOptions, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its subsidiary, (ii) there are no outstanding debt securities, notes, credit agreementssubsidiaries, or other agreementscontracts, documents commitments, understandings or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or its subsidiary or arrangements by which the Company or subsidiary any of its subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its subsidiaries or Options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its subsidiaries, and (iiiii) there are no agreements or arrangements under which the Company or any of its subsidiary subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement) or which conflict in any way with the Registration Rights AgreementSecurities Act. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any this Warrant or, upon exercise of this Warrant, the Securities as described in this Agreement. The Company has furnished to the Buyer true and correct copies issuance of the Company's Certificate of IncorporationWarrant Shares, as amended and as in effect except for anti-dilution provisions which have been validly waived on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto.or

Capitalization and Indebtedness. (a) As of the date hereof, the authorized capital stock of the Company consists of 25,000,000 75,000,000 shares of Common Stock, of which as of the date hereof 10,947,188 hereof, 15,277,371 shares are issued and outstanding, and 6,500,000 15,000,000 shares of Preferred Stock, par value $.01 per share preferred stock (the "Preferred Stock")) of the Company, none of which as of the date hereof no shares are issued or outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens suffered or encumbrances created or agreed to permitted by the Company. As Except as disclosed in the SEC Filings, as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock of the Company or its subsidiary or to issue options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock Capital Stock of the Company or any of its subsidiarySubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of Capital Stock of the Company or any of its Subsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or any of its subsidiary Subsidiaries or by which the Company or subsidiary any of its Subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its subsidiary Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act (except the Registration Rights as provided in this Agreement) or which conflict in any way with the Registration Rights Agreement). There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities Common Stock as described in this Agreement. The Company has furnished to the Buyer Underwriter true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.

Capitalization and Indebtedness. As of the date hereof------------------------------- hereof and immediately prior to the issuance of the Common Shares and Warrants hereunder, the authorized capital stock of the Company consists of 25,000,000 100,000,000 shares of Common Stock, of which as of the date hereof 10,947,188 hereof, 21,260,792 shares are issued and outstanding, and 6,500,000 10,000,000 shares of Preferred Stock, par value $.01 per share (the "Preferred Stock"), none of which as of the date hereof 2,000,000 shares are issued or outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No Except as set forth on Schedule 3(c), no shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances created suffered or agreed to permitted by the Company. As Except as set forth on Schedule 3(c), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments issued by the Company of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or its subsidiary, or contracts, commitments, understandings or arrangements by which the Company or its subsidiary is or may become bound to issue additional shares of capital stock of the Company or its subsidiary or to issue options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its subsidiarysubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its subsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness for borrowed money in excess of $250,000 of the Company or any of its subsidiary subsidiaries or by which the Company or subsidiary any of its subsidiaries is or may become bound and (iii) except for the Company's securities which are the subject of registration statements which have been filed with the SEC as of the Closing Date, there are no agreements or arrangements under which the Company or any of its subsidiary subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement) or which conflict in any way with the Registration Rights Agreement). There Except as disclosed on Schedule 3(c), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities as described in this Agreement. The Company has furnished to the Buyer true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto.