Common use of Capitalization; Indebtedness Clause in Contracts

Capitalization; Indebtedness. (a) The authorized capital stock of the Company consists of fifty million (50,000,000) shares of Common Stock and two million (2,000,000) shares of preferred stock, $.01 par value per share (the "Preferred Stock"). As of June 24, 2002: (i) twenty-four million six hundred sixty thousand nine hundred fifty-seven (24,660,957) shares of Common Stock were issued and outstanding; (ii) four million three hundred twenty-one thousand nine hundred sixteen (4,321,916) shares of Common Stock were reserved for issuance upon the exercise of outstanding stock options or other rights to purchase or receive the Common Stock granted under the Company's 1995 Stock Option Plan, as amended (the "1995 Plan"); (iii) two hundred sixty thousand (260,000) shares of Common Stock were reserved for issuance upon the exercise of outstanding stock options or other rights to receive the Common Stock granted under the Company's Director Stock Option Plan (the "Director Plan" and together with the 1995 Plan, the "Company Stock Option Plans"); (iv) two million (2,000,000) shares of Common Stock were reserved for issuance upon the conversion of the First December 2000 Note; (v) five hundred thousand (500,000) shares of Common Stock were reserved for issuance upon the conversion of the Second December 2000 Note; (vi) three hundred sixty thousand four hundred ninety (360,490) shares of Common Stock were reserved for issuance upon the conversion of the September 2001 Note; (vii) one million seven hundred ninety-eight thousand five hundred sixty-one (1,798,561) shares of Common Stock were reserved for issuance upon conversion of the Convertible Note; (viii) five hundred fifty-nine thousand five hundred thirty-two (559,532) shares of Common Stock were held by the Company in the Company's treasury; (ix) no shares of Preferred Stock were issued or outstanding; and (x) warrants to purchase two hundred seventy thousand five hundred sixty-two (270,562) shares of Common Stock were issued and outstanding (the "Existing Warrants"). (b) All outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive or similar rights. Except as set forth in this Section 2.4 and except for changes resulting from the issuance of shares of Common Stock pursuant to the Company Stock Option Plans and the Existing Warrants, or as expressly permitted by this Agreement or the Related Agreements, (i) there are not issued, reserved for issuance or outstanding (A) any shares of capital stock or other voting securities of the Company, (B) any securities of the Company or any Company subsidiary convertible into or exchangeable or exercisable for shares of capital stock or voting securities of or ownership interests in the Company or any Company subsidiary, or (C) any warrants, calls, options or other rights to acquire from the Company or any Company subsidiary, or any obligation of the Company or any Company subsidiary to issue, any capital stock, voting securities or other ownership interests in, or securities convertible into or exchangeable or exercisable for capital stock or voting securities of or other ownership interests in, the Company or any Company subsidiary, (ii) there are no outstanding obligations of the Company or any Company subsidiary to repurchase, redeem or otherwise acquire any such securities or to issue, deliver or sell, or cause to be issued, delivered or sold, any such securities, and (iii) except as contemplated in this Agreement or the Related Agreements or as set forth on Schedule 2.4(b), the Company is not presently under any obligation, has not agreed or committed, and has not granted rights, to register under the Securities Act of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise file any registration statement under the Securities Act or the Exchange Act covering, any of its currently outstanding capital stock or other securities or any of its capital stock or other securities that may be subsequently issued. (c) Except as provided for in this Agreement or the Related Agreements and except as set forth on Schedule 2.4(c), neither the Company nor any Company subsidiary is a party to any agreement granting any preemptive or antidilutive rights with respect to any securities of the Company or any Company subsidiary that are outstanding as of the date hereof, or with respect to any securities of the Company or any Company subsidiary that may be subsequently issued upon the conversion or exercise of any instrument outstanding as of the date hereof. Except as set forth on Schedule 2.4(c) hereto, the execution, delivery and performance of this Agreement and the Related Agreements and the issuance of the Convertible Note and the Note Shares will not trigger any of the preemptive or antidilutive rights under any of the agreements set forth on such Schedule 2.4(c). Other than the Fielding Pharmaceutical Company, the Company does not directly or indirectly beneficially own any securities or other beneficial ownership interests in any other person. (d) Except for the Convertible Note to be issued hereunder, the First December 2000 Note, the Second December 2000 Note and the September 2001 Note and except as set forth on Schedule 2.4(d) hereto, the Company has no Indebtedness (as defined in the Amended and Restated Investor Rights Agreement).

Capitalization; Indebtedness. (a) The authorized capital stock of the Company consists of fifty million (50,000,000) shares of Common Stock and two million (2,000,000) shares of preferred stock, $.01 par value per share (the "“Preferred Stock"”). As of June 24, 2002: (i) twenty-four million six hundred sixty thousand nine hundred fifty-seven (24,660,957) shares of Common Stock were issued and outstanding; (ii) four million three hundred twenty-one thousand nine hundred sixteen (4,321,916) shares of Common Stock were reserved for issuance upon the exercise of outstanding stock options or other rights to purchase or receive the Common Stock granted under the Company's ’s 1995 Stock Option Plan, as amended (the "“1995 Plan"”); (iii) two hundred sixty thousand (260,000) shares of Common Stock were reserved for issuance upon the exercise of outstanding stock options or other rights to receive the Common Stock granted under the Company's ’s Director Stock Option Plan (the "“Director Plan" ” and together with the 1995 Plan, the "“Company Stock Option Plans"”); (iv) two million (2,000,000) shares of Common Stock were reserved for issuance upon the conversion of the First December 2000 Note; (v) five hundred thousand (500,000) shares of Common Stock were reserved for issuance upon the conversion of the Second December 2000 Note; (vi) three hundred sixty thousand four hundred ninety (360,490) shares of Common Stock were reserved for issuance upon the conversion of the September 2001 Note; (vii) one million seven hundred ninety-eight thousand five hundred sixty-one (1,798,561) shares of Common Stock were reserved for issuance upon conversion of the Convertible Note; (viii) five hundred fifty-nine thousand five hundred thirty-two (559,532) shares of Common Stock were held by the Company in the Company's ’s treasury; (ix) no shares of Preferred Stock were issued or outstanding; and (x) warrants to purchase two hundred seventy thousand five hundred sixty-two (270,562) shares of Common Stock were issued and outstanding (the "“Existing Warrants"”). (b) All outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive or similar rights. Except as set forth in this Section 2.4 and except for changes resulting from the issuance of shares of Common Stock pursuant to the Company Stock Option Plans and the Existing Warrants, or as expressly permitted by this Agreement or the Related Agreements, (i) there are not issued, reserved for issuance or outstanding (A) any shares of capital stock or other voting securities of the Company, (B) any securities of the Company or any Company subsidiary convertible into or exchangeable or exercisable for shares of capital stock or voting securities of or ownership interests in the Company or any Company subsidiary, or (C) any warrants, calls, options or other rights to acquire from the Company or any Company subsidiary, or any obligation of the Company or any Company subsidiary to issue, any capital stock, voting securities or other ownership interests in, or securities convertible into or exchangeable or exercisable for capital stock or voting securities of or other ownership interests in, the Company or any Company subsidiary, (ii) there are no outstanding obligations of the Company or any Company subsidiary to repurchase, redeem or otherwise acquire any such securities or to issue, deliver or sell, or cause to be issued, delivered or sold, any such securities, and (iii) except as contemplated in this Agreement or the Related Agreements or as set forth on Schedule 2.4(b), the Company is not presently under any obligation, has not agreed or committed, and has not granted rights, to register under the Securities Act of 1933, as amended (the "“Securities Act"”), or the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), or otherwise file any registration statement under the Securities Act or the Exchange Act covering, any of its currently outstanding capital stock or other securities or any of its capital stock or other securities that may be subsequently issued. (c) Except as provided for in this Agreement or the Related Agreements and except as set forth on Schedule 2.4(c), neither the Company nor any Company subsidiary is a party to any agreement granting any preemptive or antidilutive rights with respect to any securities of the Company or any Company subsidiary that are outstanding as of the date hereof, or with respect to any securities of the Company or any Company subsidiary that may be subsequently issued upon the conversion or exercise of any instrument outstanding as of the date hereof. Except as set forth on Schedule 2.4(c) hereto, the execution, delivery and performance of this Agreement and the Related Agreements and the issuance of the Convertible Note and the Note Shares will not trigger any of the preemptive or antidilutive rights under any of the agreements set forth on such Schedule 2.4(c). Other than the Fielding Pharmaceutical Company, the Company does not directly or indirectly beneficially own any securities or other beneficial ownership interests in any other person. (d) Except for the Convertible Note to be issued hereunder, the First December 2000 Note, the Second December 2000 Note and the September 2001 Note and except as set forth on Schedule 2.4(d) hereto, the Company has no Indebtedness (as defined in the Amended and Restated Investor Rights Agreement).

Capitalization; Indebtedness. (a) The authorized capital stock of the Company consists of fifty one hundred million (50,000,000100,000,000) shares of common stock, $0.01 par value per share (the “Common Stock Stock”) and two million (2,000,000) shares of preferred stock, $.01 par value per share (the "“Preferred Stock"”). As of June 2430, 20022004: (i) twentythirty-four million six eight hundred sixty twenty-five thousand nine eight hundred fiftyeighty-seven five (24,660,95734,825,885) shares of Common Stock were issued and outstanding; (ii) four million three hundred twenty-one thousand nine hundred sixteen nine thousand six hundred eighteen (4,321,9164,909,618) shares of Common Stock were reserved for issuance upon the exercise of outstanding stock options or other rights to purchase or receive the Common Stock granted under the Company's ’s 1995 Stock Option Plan, as amended (the "1995 Plan"); (iii) two hundred sixty seventy thousand (260,000270,000) shares of Common Stock were reserved for issuance upon the exercise of outstanding stock options or other rights to receive the Common Stock granted under the Company's ’s Director Stock Option Plan (the "Director Plan" and together with the 1995 Plan, the "Company Stock Option Plans"); (iv) two five million one hundred eighty-eight thousand one hundred forty-seven (2,000,0005,188,147) shares of Common Stock were reserved for issuance upon the conversion of the First December 2000 NoteNotes; (v) five hundred thousand (500,000) shares of Common Stock were reserved for issuance upon the conversion of the Second December 2000 Note; (vi) three hundred sixty thousand four hundred ninety (360,490) shares of Common Stock were reserved for issuance upon the conversion of the September 2001 Note; (vii) one million seven hundred ninety-eight thousand five hundred sixty-one (1,798,561) shares of Common Stock were reserved for issuance upon conversion of the Convertible Note; (viii) five two hundred fifty-nine three thousand five eight hundred thirtyforty-two eight (559,532253,848) shares of Common Stock were held by the Company in the Company's ’s treasury; (ixvi) no shares of Preferred Stock were issued or outstanding; and (xvii) warrants to purchase two hundred seventy thousand five hundred sixty-two (270,56270,000) shares of Common Stock were issued and outstanding (the "Existing Warrants")outstanding. (b) All outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive or similar rights. Except as set forth in this Section 2.4 2.5, except as provided in the Collaboration Agreements (including the Notes) and except for changes resulting from the issuance of shares of Common Stock pursuant to the Company Stock Option Plans stock option plans and the Existing Warrantswarrants, or as expressly permitted by this Agreement or the Related AgreementsAgreement, (i) there are not issued, reserved for issuance or outstanding (A) any shares of capital stock or other voting securities of the Company, (B) any securities of the Company or any Company subsidiary convertible into or exchangeable or exercisable for shares of capital stock or voting securities of or ownership interests in the Company or any Company subsidiary, or (C) any warrants, calls, options or other rights to acquire from the Company or any Company subsidiary, or any obligation of the Company or any Company subsidiary to issue, any capital stock, voting securities or other ownership interests in, or securities convertible into or exchangeable or exercisable for capital stock or voting securities of or other ownership interests in, the Company or any Company subsidiary, ; (ii) there are no outstanding obligations of the Company or any Company subsidiary to repurchase, redeem or otherwise acquire any such securities or to issue, deliver or sell, or cause to be issued, delivered or sold, any such securities, ; and (iii) except as contemplated described in this Agreement or the Related Agreements or as set forth on Schedule 2.4(b)Agreements, the Company is not presently under any obligation, has not agreed or committed, and has not granted rights, to register under the Securities Act of 1933, as amended (the "“Securities Act"”), or the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), or otherwise file any registration statement under the Securities Act or the Exchange Act covering, any of its currently outstanding capital stock or other securities or any of its capital stock or other securities that may be subsequently issued. (c) Except as provided for in this Agreement or the Related Collaboration Agreements and except as set forth on Schedule 2.4(c(including the Notes), neither the Company nor any Company subsidiary is a party to any agreement granting any preemptive or antidilutive rights with respect to any securities of the Company or any Company subsidiary that are outstanding as of the date hereof, or with respect to any securities of the Company or any Company subsidiary that may be subsequently issued upon the conversion or exercise of any instrument outstanding as of the date hereof. Except as set forth on Schedule 2.4(c) hereto, the The execution, delivery and performance of this Agreement and the Related Agreements and the issuance of the Convertible Note Exchange Shares and the Note Sales Force Shares will not trigger any of the preemptive preemptive, antidilutive or antidilutive similar rights under any of agreement to which the agreements set forth on such Schedule 2.4(cCompany or any Company subsidiary is a party, except as provided in the Collaboration Agreements (including the Notes). Other than the Fielding Pharmaceutical Company, a Delaware corporation (“Fielding”), the Company does not directly or indirectly beneficially own any securities or other beneficial ownership interests in any other person. (d) Except for the Convertible Note to be issued hereunder, the First December 2000 Note, the Second December 2000 Note and the September 2001 Note and except as set forth on Schedule 2.4(d) hereto, the Company has no Indebtedness (as defined in the Amended and Restated Investor Rights Agreement).

Capitalization; Indebtedness. (a) The authorized capital stock of the Company consists of fifty one hundred million (50,000,000100,000,000) shares of common stock, $0.01 par value per share (the "Common Stock Stock") and two million (2,000,000) shares of preferred stock, $.01 par value per share (the "Preferred Stock"). As of June 2430, 20022004: (i) twentythirty-four million six eight hundred sixty twenty-five thousand nine eight hundred fiftyeighty-seven five (24,660,95734,825,885) shares of Common Stock were issued and outstanding; (ii) four million three hundred twenty-one thousand nine hundred sixteen nine thousand six hundred eighteen (4,321,9164,909,618) shares of Common Stock were reserved for issuance upon the exercise of outstanding stock options or other rights to purchase or receive the Common Stock granted under the Company's 1995 Stock Option Plan, as amended (the "1995 Plan"); (iii) two hundred sixty seventy thousand (260,000270,000) shares of Common Stock were reserved for issuance upon the exercise of outstanding stock options or other rights to receive the Common Stock granted under the Company's Director Stock Option Plan (the "Director Plan" and together with the 1995 Plan, the "Company Stock Option Plans"); (iv) two five million one hundred eighty-eight thousand one hundred forty-seven (2,000,0005,188,147) shares of Common Stock were reserved for issuance upon the conversion of the First December 2000 NoteNotes; (v) five hundred thousand (500,000) shares of Common Stock were reserved for issuance upon the conversion of the Second December 2000 Note; (vi) three hundred sixty thousand four hundred ninety (360,490) shares of Common Stock were reserved for issuance upon the conversion of the September 2001 Note; (vii) one million seven hundred ninety-eight thousand five hundred sixty-one (1,798,561) shares of Common Stock were reserved for issuance upon conversion of the Convertible Note; (viii) five two hundred fifty-nine three thousand five eight hundred thirtyforty-two eight (559,532253,848) shares of Common Stock were held by the Company in the Company's treasury; (ixvi) no shares of Preferred Stock were issued or outstanding; and (xvii) warrants to purchase two hundred seventy thousand five hundred sixty-two (270,56270,000) shares of Common Stock were issued and outstanding (the "Existing Warrants")outstanding. (b) All outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive or similar rights. Except as set forth in this Section 2.4 2.5, except as provided in the Collaboration Agreements (including the Notes) and except for changes resulting from the issuance of shares of Common Stock pursuant to the Company Stock Option Plans stock option plans and the Existing Warrantswarrants, or as expressly permitted by this Agreement or the Related AgreementsAgreement, (i) there are not issued, reserved for issuance or outstanding (A) any shares of capital stock or other voting securities of the Company, (B) any securities of the Company or any Company subsidiary convertible into or exchangeable or exercisable for shares of capital stock or voting securities of or ownership interests in the Company or any Company subsidiary, or (C) any warrants, calls, options or other rights to acquire from the Company or any Company subsidiary, or any obligation of the Company or any Company subsidiary to issue, any capital stock, voting securities or other ownership interests in, or securities convertible into or exchangeable or exercisable for capital stock or voting securities of or other ownership interests in, the Company or any Company subsidiary, ; (ii) there are no outstanding obligations of the Company or any Company subsidiary to repurchase, redeem or otherwise acquire any such securities or to issue, deliver or sell, or cause to be issued, delivered or sold, any such securities, ; and (iii) except as contemplated described in this Agreement or the Related Agreements or as set forth on Schedule 2.4(b)Agreements, the Company is not presently under any obligation, has not agreed or committed, and has not granted rights, to register under the Securities Act of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise file any registration statement under the Securities Act or the Exchange Act covering, any of its currently outstanding capital stock or other securities or any of its capital stock or other securities that may be subsequently issued. (c) Except as provided for in this Agreement or the Related Collaboration Agreements and except as set forth on Schedule 2.4(c(including the Notes), neither the Company nor any Company subsidiary is a party to any agreement granting any preemptive or antidilutive rights with respect to any securities of the Company or any Company subsidiary that are outstanding as of the date hereof, or with respect to any securities of the Company or any Company subsidiary that may be subsequently issued upon the conversion or exercise of any instrument outstanding as of the date hereof. Except as set forth on Schedule 2.4(c) hereto, the The execution, delivery and performance of this Agreement and the Related Agreements and the issuance of the Convertible Note Exchange Shares and the Note Sales Force Shares will not trigger any of the preemptive preemptive, antidilutive or antidilutive similar rights under any of agreement to which the agreements set forth on such Schedule 2.4(cCompany or any Company subsidiary is a party, except as provided in the Collaboration Agreements (including the Notes). Other than the Fielding Pharmaceutical Company, a Delaware corporation ("Fielding"), the Company does not directly or indirectly beneficially own any securities or other beneficial ownership interests in any other person. (d) Except for the Convertible Note to be issued hereunder, the First December 2000 Note, the Second December 2000 Note and the September 2001 Note and except as set forth on Schedule 2.4(d) hereto, the Company has no Indebtedness (as defined in the Amended and Restated Investor Rights Agreement).