Common use of Authorized Capital Stock Clause in Contracts

Authorized Capital Stock. (a) The authorized capital stock of the Corporation consists of 37,500,000 shares of Common Stock and 10,000,000 shares of Preferred Stock, par value $.001 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 shares of Series A Preferred Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series of Preferred Stock of the Corporation issued and outstanding. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation are as set forth in the Charter and the Certificate of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation"), and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein), (i) no subscription, warrant, option, convertible security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (ii) there is no commitment by the Corporation to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in the SEC Documents, the Corporation has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (whether or not any of them is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) The authorized Company has authorized, issued ------------------------ and outstanding capital stock as set forth in the Company's reports (the "34 Act Reports") filed by it with the Securities and Exchange Commission (the "Commission") since January 1, 2001 pursuant to the Securities and Exchange Act of 1934, as amended (the "Exchange Act") (except as set forth on Schedule 3.2 and except for subsequent issuances, if any, pursuant to this Agreement or pursuant to agreements, employee or director benefit plans or the exercise of convertible securities referred to in the 34 Act Reports). The issued and outstanding shares of the Corporation consists of 37,500,000 shares of Common Stock and 10,000,000 shares of Preferred StockCompany's preferred stock, par value $.001 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock share (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of and Common Stock have been duly authorized and 5,000,000 shares of Series A Preferred Stock will be validly issued and outstandingissued, are fully paid and nonassessable with no personal liability attaching nonassessable, were not issued in violation of or are not otherwise subject to any preemptive or other similar rights or other rights to subscribe for or purchase securities, and conform to the ownership thereofdescription thereof contained in the 34 Act Reports. The Series A Preferred Stock Except as disclosed in the 34 Act Reports and options issued under the Company's stock plans after March 31, 2001 and except as set forth on Schedule 3.2, the Company does not have outstanding any options or warrants to purchase, or any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of its capital stock or any shares of capital stock of any subsidiary and there is the only series no commitment, plan or arrangement to issue, any securities or obligations convertible into any shares of Preferred Stock of the Corporation issued and outstanding. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation are as set forth Company or any such options, rights convertible securities or obligations. The description of the Company's capital stock, stock bonus and other stock plans or arrangements and the options or other rights granted and exercised thereunder, contained in the Charter 34 Act Reports accurately and fairly presents the Certificate of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation"), and all information required to be shown with respect to such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein), (i) no subscription, warrant, option, convertible security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (ii) there is no commitment by the Corporation to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in the SEC Documents, the Corporation has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (whether or not any of them is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock, plans, arrangements, options and rights.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation Company consists of 37,500,000 (i) 30,000,000 shares of Common Stock and 10,000,000 (ii) 5,000,000 shares of Preferred Stock, par value $.001 per sharepreferred stock, of which 5,250,000 4,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A B Preferred Stock"). On October 30, 1998, 7,756,006 8,894,426 shares of Common Stock and 5,000,000 shares of Series A Preferred Stock will be are validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof, 3,893,604 shares of Common Stock are reserved for issuance upon exercise of outstanding options and warrants, and another 793,777 shares have been reserved for issuance under the 1994 Long-Term Incentive and Stock Option Plan and the 1996 Directors' Stock Option Plan, and no Series B Shares shall have been issued. The Series A Preferred Stock is the only series shareholders of Preferred Stock record, and holders by name or by category of subscriptions, warrants, options, convertible debt or equity securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Corporation issued Company, and outstandingthe number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, are as set forth on Schedule 2.04. Schedule 2.04 also identifies, to the extent known to the Company, all the beneficial owners of such securities, to the extent the record holders are not the beneficial owners of such securities. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation Company are as set forth in the Charter and the Certificate Articles of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")Incorporation, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as contemplated by this Agreement or set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein)attached Schedule 2.04, (i) no Person owns of record or is known to the Company to own beneficially any share of Common Stock, (ii) no subscription, warrant, option, convertible security, or other right (contingent or otherwiseother) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries Company is authorized or outstanding and outstanding, (iiiii) there is no commitment by the Corporation Company to issue shares, subscriptions, warrants, options, convertible equity or debt securities, or other such rights or to distribute to holders of any of its equity or debt securities any evidence of indebtedness or assetasset and (iv) there are no options, warrants, rights, convertible or exchangeable securities, "phantom" stock rights, stock appreciation rights, stock-based performance units, commitments, contracts, arrangements or undertakings of any kind to which the Company is a party or by which it is bound (x) obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible into, or exercisable for or exchangeable for, any capital stock of or other equity interest in, the Company, (y) obligating the Company to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, or (z) that give any person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights occurring to holders of Common Stock. Except as provided for in the Charter or the Certificate Articles of Designation Incorporation or as set forth in the SEC Documentsattached Schedule 2.04, the Corporation Company has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know Except as set forth on Schedule 2.04 and in the Series B Certificate, or as expressly contemplated by the terms of any this Agreement, there are no voting trusts or agreements, stockholders shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (Company whether or not any of them the Company is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been Company were issued in compliance in all material respects with all applicable Federal federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. As of August 31, 2004, (ai) The the authorized capital stock of the Corporation consists Company consisted of 37,500,000 twenty four million (24,000,000) shares of Common Stock and 10,000,000 two million (2,000,000) shares of Preferred Stock, par value $.001 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock thirteen million nine hundred seventy seven thousand twenty-three (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 13,977,023) shares of Common Stock and 5,000,000 no shares of Series A Preferred Stock will be validly were issued and outstanding; (ii) there were outstanding options granted pursuant to the Company’s stock option plans (as described in Section 4.2(iii)) to purchase a total of three hundred ninety-three thousand eight hundred forty-eight (393,848) shares of Common Stock; (iii) there were available for issuance under the Company’s stock option and purchase plans a total of eight hundred thousand (800,000) shares of Common Stock; and (iv) there were one hundred sixty-seven thousand eight hundred twenty-eight (167,828) shares of Common Stock reserved for issuance under the Company’s dividend reinvestment plan. The issued and outstanding shares of the Company’s Common Stock have been duly authorized and validly issued, are fully paid and nonassessable nonassessable, have been issued in compliance with no personal liability attaching all federal and state securities laws and were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities, and conform in all material respects to the ownership thereofdescription thereof contained in the Private Placement Memorandum or incorporated by reference in the Private Placement Memorandum. The Series A Preferred Stock is Except for stock options and other awards granted under the only series of Preferred Stock option, award and purchase plans of the Corporation issued and outstanding. The designationsCompany described in the Private Placement Memorandum or except as otherwise disclosed in or contemplated by the Private Placement Memorandum, powersthe Company does not have outstanding any options to purchase, preferencesor any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of its capital stock or any such options, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock convertible securities or obligations. The description of the Corporation are as Company’s stock, stock bonus and other stock plans or arrangements and the options or other rights granted and exercised thereunder, set forth or incorporated by reference in the Charter Private Placement Memorandum accurately and the Certificate of Designation of the Series A Preferred Stock fairly presents in all material respects all information pertaining to such plans, arrangements, options and amendments thereto (the "Certificate of Designation"), and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein)With respect to each Subsidiary, (i) no subscriptionall the issued and outstanding shares of the Subsidiary’s capital stock have been duly authorized and validly issued, warrantare fully paid and nonassessable, optionhave been issued in compliance with applicable federal and state securities laws, convertible security, were not issued in violation of or subject to any preemptive rights or other right (contingent rights to subscribe for or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding securities, and (ii) there is are no commitment by the Corporation outstanding options to purchase, or any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue sharesor sell, subscriptions, warrants, shares of the Subsidiary’s capital stock or any such options, rights, convertible securities, securities or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or assetobligations. Except as provided for in the Charter or the Certificate of Designation or as set forth in the SEC Documentsdisclosed on Schedule 4.1, the Corporation has no obligation (contingent Company directly or otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (whether or not any of them is a party thereto), except for this Agreement and the Stockholders Agreement. All indirectly owns 100% of the outstanding securities equity of the Corporation have been issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stockeach Subsidiary.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation Company consists of 37,500,000 8,540,000 shares of Preferred Stock, and 17,000,000 shares of Common Stock. Immediately prior to the Closing, 2,592,610 shares of Common Stock and 10,000,000 6,790,001 shares of Preferred Stock, par value $.001 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 shares of Series A Preferred Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series stockholders of Preferred Stock record and holders of subscriptions, warrants, options, convertible securities, and other rights (contingent or other), if any, to purchase or otherwise acquire equity securities of the Corporation issued Company prior to the Closing Date (the "Original Shareholders") and outstandingthe number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights, if any, held by each, are as set forth in the Memorandum. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation Company are as set forth in the Charter and the Certificate Articles, a copy of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")which has previously been delivered to each Purchaser, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation attached Schedule 6.04 or SEC Documents (as defined herein)in the Memorandum, (ia) no person owns of record or is known to the Company to own beneficially any share of Common Stock, (b) no subscription, warrant, option, convertible security, or other right (contingent or otherwiseother) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries Company is authorized or outstanding and (iic) there is no commitment by the Corporation Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation Articles or as set forth in the SEC Documentsherein, the Corporation Company has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any Except as set forth herein or in the Memorandum, there are no voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries Company (whether or not any of them the Company is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been Company were issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation Company consists of 37,500,000 12,200,000 shares of Preferred Stock, and 21,500,000 shares of Common Stock. Immediately prior to the Closing, 2,829,735 shares of Common Stock and 10,000,000 9,451,766 shares of Preferred Stock, par value $.001 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 shares of Series A Preferred Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series stockholders of Preferred Stock record and holders of subscriptions, warrants, options, convertible securities, and other rights (contingent or other), if any, to purchase or otherwise acquire equity securities of the Corporation issued Company prior to the Closing Date and outstandingthe number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights, if any, held by each, are as set forth in the Disclosure Statement and/or in Schedule 6.4 attached hereto. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation Company are as set forth in the Charter and Amended Articles, a copy of which has previously been delivered to the Certificate of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")Purchaser, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation attached Schedule 6.4 or SEC Documents (as defined herein)in the Disclosure Statement, (ia) no person owns of record or is known to the Company to own beneficially any share of Common Stock, (b) no subscription, warrant, option, convertible security, or other right (contingent or otherwiseother) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries Company is authorized or outstanding and (iic) there is no commitment by the Corporation Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation Amended Articles or as set forth in the SEC Documentsherein, the Corporation Company has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any Except as set forth herein or in the Disclosure Statement, there are no voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries Company (whether or not any of them the Company is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been Company were issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation Company consists of 37,500,000 shares of Common Stock and 10,000,000 (i) 8,000,000 shares of Preferred Stock, $1.00 par value $.001 per shareshare (the "Preferred Stock"), of which 5,250,000 7,246,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 and (ii) 12,000,000 shares of Common Stock and 5,000,000 Stock. Immediately prior to the Closing, 1,545,000 shares of Series A Preferred Common Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series thereof and no shares of Preferred Stock will have been issued. The Company has committed to issue 857,706 shares of Preferred Stock to Centocor, Inc., which shares may be issued shortly after Closing. There are no other subscriptions, warrants, options, convertible securities, or other rights (contingent or other) to purchase or otherwise acquire equity securities of the Corporation issued Company currently outstanding although the Company has reserved 1,073,690 shares of Common Stock and outstandingfor Preferred Stock for issuance pursuant to incentive compensation plans. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation Series A Preferred Stock are as set forth in the Charter and the Certificate of Designation of attached to the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")Memorandum as Exhibit D, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein), (i) no subscription, warrant, option, convertible security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (ii) there is no commitment by the Corporation to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in the SEC DocumentsDesignation, the Corporation Company has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know Except for the Stockholders' Agreement, to the best of any the Company's knowledge there are no voting trusts or agreements, stockholders stockholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries Company (whether or not any of them the Company is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been Company were issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) )The authorized capital stock of the Corporation Company consists of 37,500,000 shares of Common Stock and 10,000,000 shares of (i) 10,000 Special Shares, without par value (the "Preferred Stock, par value $.001 per share"), of which 5,250,000 1,000 shares have been designated Series A 9% Preferred Stock, 1,500 shares have been designated Series B Preferred Stock and 3,000 shares have been designated Series C Convertible Preferred Stock and (ii) 10,000 shares of Common Stock. Except for the "Series B Preferred Stock, all of which will be redeemed on the Closing Date, no shares of Common Stock or Preferred Stock have been reacquired by the Company and are held in its treasury. There are no restrictions on the transfer of shares of capital stock of the Company other than those imposed by the Charter and By- laws, applicable Federal and state securities laws, the Restrictive Stock Transfer Agreements described in the Disclosure Schedule executed by certain holders of Common Stock and/or Series A Preferred Stock"), those restrictions applicable to the Series B Preferred Stock as set forth in the Charter, and those restrictions on transfer expressly set forth in this Agreement, the Company Ancillary Documents, the Purchaser Ancillary Documents and the Executive Shareholder Ancillary Documents. On October 30To the knowledge of the Company and the Executive Shareholders, 1998other than as provided in the preceding sentence, 7,756,006 there are no agreements, understandings, trusts or other collaborative arrangements concerning the voting or transfer of shares of Common Stock capital stock of the Company. The shareholders of record and 5,000,000 holders of subscriptions, warrants, options, convertible securities and other rights (contingent or other) to purchase or otherwise acquire from the Company equity securities of the Company, and the number of shares of Series A Preferred Stock will be validly issued capital stock and outstandingthe number of such subscriptions, fully paid warrants, options, convertible securities and nonassessable with no personal liability attaching to other such rights held by each such holder, are as set forth in the ownership thereof. The Series A Preferred Stock is the only series of Preferred Stock of the Corporation issued and outstandingDisclosure Schedule. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation Company are as set forth in the Charter and Charter, a copy of which is included in the Certificate of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")Disclosure Schedule, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. The Company is not in arrears with respect to dividends payable under the terms of any series of Preferred Stock. Except as provided in this Agreement or as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein)Disclosure Schedule, (i) no person owns of record any shares of capital stock of the Company, (ii) no subscription, warrant, option, convertible security, security or other right (contingent or otherwiseother) to purchase or otherwise acquire from the Company equity securities of the Corporation from the Corporation or any of its subsidiaries Company is authorized or outstanding and (iiiii) there is no commitment by the Corporation Company to issue shares, subscriptions, warrants, options, convertible securities, securities or other such rights or or, except for the redemption of the Series B Preferred Stock and the warrants issued to the holders thereof, to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in the SEC Documents, the Corporation has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution asset in respect thereof. The Corporation does not know of any voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (whether or not any of them is a party thereto), except for this Agreement and the Stockholders Agreementsuch equity securities. All of the outstanding securities of the Corporation have been Company were issued in compliance in all material respects with all applicable Federal and state securities laws. Except for The offering of the Registration Rights Agreement, or as set forth shares of Series A Preferred Stock and shares of Common Stock referenced in the SEC Documents or as set forth in Schedule 2.4 hereofBlue Sky Memorandum dated November 29, there are no agreements or understandings granting 1993 of Xxxxx & Xxxxxxx, counsel to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933Company, as amended supplemented by the Supplemental Blue Sky Memorandum, dated December 17, 1993, a copy of which is included in the Disclosure Schedule (the "Securities ActBlue Sky Memorandum"), was conducted as described in the Blue Sky Memorandum, all facts assumed in the Blue Sky Memorandum relating to the Company were true as of any shares relevant time and, to the knowledge of its capital stockthe Company and the Executive Shareholders, all facts assumed in the Blue Sky Memorandum other than those relating to the Company were true as of any relevant time .

Authorized Capital Stock. (a) The As of the date hereof, the authorized capital stock of the Corporation Company consists of 37,500,000 75,000,000 shares of Common Stock Stock, $0.01 par value, and 10,000,000 shares of Preferred Stock, $0.01 par value $.001 per sharevalue. As of the date hereof, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 approximately 9,362,987 shares of Common Stock and 5,000,000 no shares of Series A Preferred Stock will be are validly issued and outstanding, and each outstanding share of Common Stock is fully paid and nonassessable with no personal liability attaching nonassessable. The Company has reserved (i) 4,762,624 shares of Common Stock for issuance pursuant to the ownership thereof. The Series A Preferred Company's 2006 Equity Incentive Plan and (ii) 1,550,000 shares of Common Stock is for issuance pursuant to the only series Company's 2006 Employee Stock Purchase Plan and 1997 Employee Stock Purchase Plan (together, the "Purchase Plans"), and has outstanding options to purchase 2,973,964 shares of Preferred Common Stock under the 2006 Equity Incentive Plan as of the Corporation issued and outstandingdate hereof. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation Company are as set forth in the Charter Company's articles of incorporation. The issued and outstanding shares of Common Stock conform to the Certificate of Designation of description thereof contained in the Series A Preferred Stock and amendments thereto reports (the "Certificate of DesignationExchange Act Reports"), and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein), (i) no subscription, warrant, option, convertible security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (ii) there is no commitment filed by the Corporation to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in the SEC Documents, the Corporation has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (whether or not any of them is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been issued in compliance in all material respects Company with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 19331934, as amended (the "Securities Exchange Act"). Except for options issued under the Company's 2006 Equity Incentive Plan and the obligations under the Purchase Plans, of the Company does not have outstanding any options or warrants to purchase, or any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of its capital stock, and there is no commitment, plan or arrangement to issue, any securities or obligations convertible into any shares of capital stock of the Company or any such options, rights convertible securities or obligations.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation Company consists of 37,500,000 (1) 8,540,000 shares of Preferred Stock, and (2) 17,000,000 shares of Common Stock. Immediately prior to the Closing, 2,674,953 shares of Common Stock and 10,000,000 8,040,001 shares of Preferred Stock, par value $.001 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 shares of Series A Preferred Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series stockholders of Preferred Stock record and holders of subscriptions, warrants, options, convertible securities, and other rights (contingent or other), if any, to purchase or otherwise acquire equity securities of the Corporation issued Company prior to the Closing Date (the "Original Shareholders") and outstandingthe number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights, if any, held by each, are as set forth in the Memorandum. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation Company are as set forth in the Charter and the Certificate Articles, a copy of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")which has previously been delivered to each Purchaser, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation attached Schedule 6.04 or SEC Documents (as defined herein)in the Memorandum, (ia) no person owns of record or is known to the Company to own beneficially any share of Common Stock, (b) no subscription, warrant, option, convertible security, or other right (contingent or otherwiseother) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries Company is authorized or outstanding and (iic) there is no commitment by the Corporation Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation Articles or as set forth in the SEC Documentsherein, the Corporation Company has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any Except as set forth herein or in the Memorandum, there are no voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries Company (whether or not any of them the Company is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been Company were issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation Company consists of 37,500,000 (1) 8,540,000 shares of Preferred Stock, and (2) 17,000,000 shares of Common Stock. Immediately prior to the Closing, 2,592,610 shares of Common Stock and 10,000,000 5,540,000 shares of Preferred Stock, par value $.001 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 shares of Series A Preferred Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series stockholders of Preferred Stock record and holders of subscriptions, warrants, options, convertible securities, and other rights (contingent or other), if any, to purchase or otherwise acquire equity securities of the Corporation issued Company prior to the Closing Date (the "Original Shareholders") and outstandingthe number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights, if any, held by each, are as set forth in the Memorandum. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation Company are as set forth in the Charter and the Certificate Articles, a copy of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")which has previously been delivered to each Purchaser, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation attached Schedule 6.04 or SEC Documents (as defined herein)in the Memorandum, (ia) no person owns of record or is known to the Company to own beneficially any share of Common Stock, (b) no subscription, warrant, option, convertible security, or other right (contingent or otherwiseother) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries Company is authorized or outstanding and (iic) there is no commitment by the Corporation Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation Articles or as set forth in the SEC Documentsherein, the Corporation Company has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any Except as set forth herein or in the Memorandum, there are no voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries Company (whether or not any of them the Company is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been Company were issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) The Subject to the approval of the shareholders of the Company as described herein, the authorized capital stock of the Corporation consists Company as of 37,500,000 shares the Preferred Share and Warrant Closing Date shall consist of Common Stock and 10,000,000 (i) 5,000,000 shares of Preferred Stock, $.01 par value $.001 per share(the "Preferred Stock"), all of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock Stock, and (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 ii) 15,000,000 shares of Common Stock and 5,000,000 Stock. As of April 27, 1999, 6,055,269 shares of Series A Preferred Common Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series thereof and no shares of Preferred Stock will have been issued. Immediately prior to the Preferred Share and Warrant Closing, no shares of Preferred Stock will have been issued. As of the Corporation issued date hereof, 200,000 shares of Common Stock are held in treasury. As of the date hereof, the holders of subscriptions, warrants, options, convertible securities, and outstandingother rights (contingent or other) to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, are as set forth in Schedule 2.04 of the Disclosure Schedule. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation Company are as set forth in the Charter and the Certificate Charter, a copy of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")which is attached as Exhibit 1.02, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate Schedule 2.04 of Designation or SEC Documents (as defined herein)the Disclosure Schedule, (i) no subscription, warrant, option, convertible security, or other right (contingent or otherwiseother) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries Company is authorized or outstanding and (ii) there is no commitment by the Corporation Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in Schedule 2.04 of the SEC DocumentsDisclosure Schedule, the Corporation Company has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know Except as set forth on Schedule 2.04 of any the Disclosure Schedule to the best of the Company's knowledge there are no voting trusts or agreements, stockholders shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation Company or any of its subsidiaries (whether or not the Company or any of them its subsidiaries is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been Company were issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation ------------------------ Company consists of 37,500,000 shares of Common Stock and 10,000,000 (i) 4,000,000 shares of Preferred Stock, $.001 par value $.001 per share(the "Preferred Stock"), all of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock Stock, and (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 ii) 12,000,000 shares of Common Stock and 5,000,000 Stock. Immediately prior to the Closing, 2,929,600 shares of Series A Preferred Common Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series thereof and no shares of Preferred Stock shall have been issued. Immediately after giving effect to the Closing, the stockholders of record and holders of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Corporation issued Company, and outstandingthe number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, will be as set forth in the attached Schedule -------- III. The designations, powers, preferences, rights, qualifications, limitations --- and restrictions in respect of each class and series of authorized capital stock of the Corporation Company are as set forth in the Charter and the Certificate Charter, a copy of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")which is attached as Exhibit G, and all such designations, powers, preferences, rights, --------- qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein)attached Schedule III, (i) no person owns of record or is known to the Company to own ------------ beneficially any share of Common Stock, (ii) no subscription, warrant, option, convertible security, or other right (contingent or otherwiseother) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries Company is authorized or outstanding and (iiiii) except as provided by this Agreement and the Charter, there is no commitment by the Corporation Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in the SEC DocumentsCharter, the Corporation Company has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any Except as provided for in the Charter, the Founders Agreements, Stockholders Agreements and the Voting Agreement, there are no voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation Company or any of its subsidiaries (whether to which the Company or not any of them its subsidiaries or, to the Company's knowledge, any other person or entity, is a party thereto), except for this Agreement and the Stockholders Agreementparty. All of the outstanding securities of the Corporation have been Company were issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) The At closing: (i) the authorized capital stock of the Corporation consists Company will consist of 37,500,000 10,000,000 shares of Common Stock and 10,000,000 Stock, of which 8,000,000 shares of Preferred are classified as Class A Common Stock, par value $.001 0.01 per share, of which 5,250,000 5,365,101 shares have been designated Series A 9% Convertible Preferred Stock (are issued and outstanding as of the "Series A Preferred Stock"). On October 30date hereof, 1998, 7,756,006 and 2,000,0000 shares of which are classified as Class B Common Stock and 5,000,000 shares Stock, par value $0.01 per share, none of Series A Preferred Stock will be validly which are issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series of Preferred Stock outstanding as of the Corporation issued date hereof and outstanding. The (ii) the designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation are Company as set forth in the Charter and the Certificate of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation"), and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are will be valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in for this Agreement, the CharterRegistration Rights Agreement or the Preferred Stock Purchase Agreement and associated Registration Rights Agreement relative to the issuance 15,510 shares of the Company's newly classified Series A Convertible Preferred Stock (together, Certificate of Designation or SEC Documents (as defined hereinthe "Preferred Stock Agreement"), (i) no subscription, warrant, option, convertible security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (ii) there is no commitment by the Corporation Company to issue sharesany shares of capital stock, subscriptions, warrants, options, convertible securities, securities or other such similar rights to purchase or receive Company securities or to distribute to the holders of any of its equity securities any evidence of indebtedness indebtedness, cash or asset. Except as provided for in other assets, (ii) the Charter or the Certificate of Designation or as set forth in the SEC Documents, the Corporation has Company is under no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any of its equity or debt securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any , and (iii) there are no voting trusts or similar agreements, stockholders stockholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (whether or not any of them is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stockCompany.

Authorized Capital Stock. (a) The As of the date hereof, the authorized capital stock of the Corporation Company consists of 37,500,000 100,000,000 shares of Common Stock, $0.001 par value, and 5,000,000 shares of Preferred Stock, $0.001 par value. As of the date hereof, approximately 15,600,259 shares of Common Stock and 10,000,000 no shares of Preferred Stock, par value $.001 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 shares of Series A Preferred Stock will be validly issued and outstanding, and each outstanding share of Common Stock is fully paid and nonassessable with no personal liability attaching nonassessable. The Company has reserved approximately 77,741 shares of Common Stock for issuance pursuant to the ownership thereof. The Series A Preferred Company's 2000 Stock is the only series Plan and has unexercised options to purchase 2,563,900 shares of Preferred Common Stock outstanding as of the Corporation issued and outstandingdate hereof. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation Company are as set forth in the Charter Company's certificate of incorporation, a true and correct copy of which, as amended to date, has previously been provided to the Certificate Purchaser, and there are no additional agreements specifying any rights with respect thereto. The issued and outstanding shares of Designation Common Stock were not issued in violation of or are not otherwise subject to any preemptive or other similar rights or other rights to subscribe for or purchase securities, and conform to the Series A Preferred Stock and amendments thereto description thereof contained in the reports (the "Certificate of Designation`34 Act Reports"), and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein), (i) no subscription, warrant, option, convertible security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (ii) there is no commitment filed by the Corporation to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in the SEC Documents, the Corporation has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (whether or not any of them is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been issued in compliance in all material respects Company with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities and Exchange Commission (the "Commission") since January 1, 2001 pursuant to the Securities Exchange Act of 19331934, as amended (the "Securities Exchange Act"). Except for options issued under the Company's stock plans, of the Company does not have outstanding any options or warrants to purchase, or any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of its capital stock or any shares of capital stock of any subsidiary and there is no commitment, plan or arrangement to issue, any securities or obligations convertible into any shares of capital stock of the Company or any such options, rights convertible securities or obligations. The description of the Company's capital stock, stock bonus and other stock plans or arrangements and the options or other rights granted and exercised thereunder, contained in the `34 Act Reports accurately and fairly presents the information required to be shown with respect to such capital stock, plans, arrangements, options and rights.

Authorized Capital Stock. (a) The Upon the filing and acceptance by the office of the Maryland State Department of Assessments and Taxation of the Articles Supplementary: (i) the authorized capital stock of the Corporation consists Company will consist of 37,500,000 9,984,490 shares of Common Stock Stock, of which 7,984,490 shares are classified as Class A Common Stock, par value $0.01 per share, of which 5,590,101 shares will be issued and 10,000,000 outstanding as of the date hereof, and 2,000,0000 shares of which are classified as Class B Common Stock, par value $0.01 per share, none of which are issued and outstanding as of the date hereof, and 15,510 shares of preferred stock, all of which have been designated Series A Convertible Preferred Stock, par value $.001 0.01 per share, none of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 shares of Series A Preferred Stock will be validly are issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series of Preferred Stock outstanding as of the Corporation issued date hereof and outstanding. The (ii) the designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation are Company as set forth in the Charter and the Certificate of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation"), and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are will be valid, binding and enforceable and in accordance with all applicable laws. Except for this Agreement, the Registration Rights Agreement, the Initial Warrant and as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein)described on Schedule 2.04 hereto, (i) no subscription, warrant, option, convertible security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (ii) there is no commitment by the Corporation Company to issue sharesany shares of capital stock, subscriptions, warrants, options, convertible securities, securities or other such similar rights to purchase or receive Company securities or to distribute to the holders of any of its equity securities any evidence of indebtedness indebtedness, cash or asset. Except as provided for in other assets, (ii) the Charter or the Certificate of Designation or as set forth in the SEC Documents, the Corporation has Company is under no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any of its equity or debt securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any , and (iii) there are no voting trusts or similar agreements, stockholders stockholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (whether or not any of them is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stockCompany.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation AVI consists of 37,500,000 (a) 50,000,000 shares of Common Stock and 10,000,000 shares of Preferred Stock, par value $.001 per share0.0001, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 shares of Series A Preferred Stock will be validly 21,575,267shares are issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series (b) 2,000,000 shares of Preferred Stock preferred stock, par value $0.0001, none of the Corporation which are issued and outstanding. There are issued and outstanding options to purchase an aggregate 2,866,335 shares of Common Stock, warrants to purchase an aggregate 7,352,003 shares of Common Stock, and no other outstanding subscriptions, warrants, options, convertible securities, or other rights (contingent or other) to purchase or otherwise acquire Common Stock or other equity securities of AVI. There are no agreements or arrangements under which AVI is obligated to register the sale of any of its securities under the Securities Act. Except for an existing warrant held by SuperGen, Inc. to acquire ten percent of the outstanding securities (as defined therein at the time of exercise), there are no anti-dilution or price adjustment provisions contained in any security issued by AVI (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Purchased Securities. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock equity securities of the Corporation AVI are as set forth in the Charter AVI's Articles of Incorporation, a true and the Certificate correct copy of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")which has been provided to Investor, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein), (i) no subscription, warrant, option, convertible security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (ii) there is no commitment by the Corporation to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate AVI's Articles of Designation or as set forth in the SEC DocumentsIncorporation, the Corporation AVI has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its the equity securities or any interest therein or rights to acquire such securities or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any To AVI's knowledge, there are no voting trusts or agreements, stockholders stockholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries AVI (whether or not any of them AVI is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been AVI were issued in compliance in all material respects with all applicable Federal federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation Company consists of 37,500,000 (a) 100,000,000 shares of Common Stock and 10,000,000 shares of Preferred Stockpreferred stock, par value $.001 per share.001, 500,000 of which 5,250,000 shares have been designated as Series A 910% Convertible Preferred Stock (the "Series A Preferred Stock"so called herein). On October 30, 1998, 7,756,006 and (b) 100,000,000 shares of Common Stock and 5,000,000 Stock. Immediately prior to the Closing, 283,172 shares of Series A Preferred Stock will be validly are issued and outstanding and 18,332,948 shares of Common Stock are issued and 18,320,748 shares are outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series of Preferred Stock of the Corporation issued and outstanding. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class the Preferred Stock and series of authorized capital stock of the Corporation Common Stock are as set forth in the Charter Company's Articles, Bylaws, and the Certificate of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")Stock, and all such designations, powers, preferences, rights, qualificationsqualification, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein)attached Schedule 5.4, (i) no person owns of record any shares of Preferred Stock or Common Stock other than as set forth on the Company's shareholder list, (ii) no subscription, warrant, option, convertible security, or other right (contingent or otherwiseother) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries Company is authorized or outstanding outstanding, and (iiiii) there is no commitment by the Corporation Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities or any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in the SEC DocumentsCompany's Articles, the Corporation Company has no obligation (contingent or otherwise) to purchase, redeem redeem, or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any To the Company's Knowledge, there are no voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries Company (whether or not any of them the Company is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been Company were issued in compliance in all material respects with all applicable Federal federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation Company consists of 37,500,000 (i) 5,000,000 shares of preferred stock, $.01 par value (the "Preferred Stock"), of which no shares have been designated, and (ii) 50,000,000 shares of Common Stock. As of March 2, 1999, 6,746,681 shares of Common Stock and 10,000,000 shares of Preferred Stock, par value $.001 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 shares of Series A Preferred Stock will be were validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series thereof and no shares of Preferred Stock had been issued. The holders of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Corporation issued Company, and outstanding. The designationsthe number of shares of Common Stock and the number of such subscriptions, powerswarrants, preferencesoptions, rightsconvertible securities, qualificationsand other such rights held by each, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation are as set forth in the Charter and the Certificate of Designation Section 2.04 of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation"), and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable lawsattached Schedule II. Except as set forth in Section 2.04 of the Charter, Certificate of Designation or SEC Documents (as defined herein)attached Schedule II, (i) no person owns of record or is known to the Company to own beneficially any share of Common Stock, (ii) no subscription, warrant, option, convertible security, or other right (contingent or otherwiseother) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries Company is authorized or outstanding and (iiiii) there is no commitment by the Corporation Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in Section 2.04 of the SEC Documentsattached Schedule II, the Corporation Company has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know Except as set forth in the Transaction Documents or Section 2.04 of any Schedule II, to the best of the Company's knowledge there are no voting trusts or agreements, stockholders stockholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation Company or any of its subsidiaries (whether or not the Company or any of them its subsidiaries is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been Company were issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation Company consists of 37,500,000 shares of Common Stock and (i) 10,000,000 shares of Preferred Stock, no par value $.001 per share(the "Preferred Stock"), of which 5,250,000 750,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998no par value, 7,756,006 and (ii) 30,000,000 shares of Company Common Stock and 5,000,000 Stock, no par value. Immediately prior to the Initial Closing, 3,513,524 shares of Company Common Stock, no shares of Series A Preferred Stock will be validly issued Stock, and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series shares of Preferred Stock will have been issued. The shareholders of record and holders of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Corporation issued Company, and outstandingthe number of shares of Company Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each, are as set forth in the attached Schedule 2.04(a)(i). There is no commitment by the Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. As of the date hereof, the Shareholders own shares of Company Common Stock and Preferred Stock having sufficient voting power to adopt and approve the Agreement of Merger under applicable law. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation Company are as set forth in the Charter and the Certificate of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")Documents, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein), (i) no subscription, warrant, option, convertible security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (ii) there is no commitment by the Corporation to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in the SEC Documents, the Corporation Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know To the knowledge of any the Company after reasonable inquiry, except as set forth in the attached Schedule 2.04(a)(ii), there are no voting trusts or agreements, stockholders shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries Company (whether or not any of them the Company is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been Company were issued in compliance in all material respects with all applicable Federal and state securities laws. Except for Immediately after the Registration Rights AgreementInitial Closing and the consummation of the sale of the Purchaser Preferred Shares to Purchaser, or as set forth in the SEC Documents or capitalization of the Company will be as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"2.04(a)(iii), of any shares of its capital stock.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation consists of 37,500,000 shares of Common Stock and 10,000,000 (i) 700,000 shares of Preferred Stock, $.001 par value $.001 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 which 200,000 have been designated as shares of Series A Preferred Stock and 500,000 have been designated as shares of Series B Preferred Stock, and (ii) 11,000,000 shares of Common Stock. Immediately prior to the Closing, 200,000 shares of Series A Preferred Stock and 2,140,000 shares of Common Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The stockholders of record and holders of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Corporation, and the number of shares of Series A Preferred Stock is or of Common Stock and the only series number of Preferred Stock of such subscriptions, warrants, options, convertible securities, and other such rights held by each, are as set forth in the Corporation issued and outstandingattached Schedule 4.4. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation are as set forth in the Charter and the Restated Certificate of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")Incorporation, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. As of the date hereof, each outstanding share of Series A Preferred Stock is convertible into one share of Common Stock. Except as provided for in the * Confidential treatment requested: material has been omitted and filed separately with the Commission. Restated Certificate of Incorporation or as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein)attached Schedule 4.4, (i) no Person owns of record or is known to the Corporation to own beneficially any share of capital stock of the Corporation, (ii) no subscription, warrant, option, convertible security, or other right (contingent or otherwiseother) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (iiiii) there is no commitment by the Corporation to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Restated Certificate of Designation Incorporation or as set forth in the SEC Documentsattached Schedule 4.4, the Corporation has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know Except as set forth in any of any the Related Documents, to the best of the Corporation's knowledge, there are no voting trusts or agreements, stockholders stockholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (whether or not any of them the Corporation is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been were issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation Company consists of 37,500,000 400,000,000 shares of Common Stock and 10,000,000 200,000,000 shares of Preferred Stock (“Preferred Stock”), including 2,000,000 shares of Series A Cumulative Redeemable Convertible Preferred Stock, par value $.001 0.01 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock share (the "“Series A Preferred Stock"”). On October 30As of the Effective Date, 1998, 7,756,006 3,640,209 shares of Common Stock were issued and 5,000,000 outstanding and 1,000,000 shares of Series A Preferred Stock will be validly were issued and outstanding, fully paid and nonassessable with no personal liability attaching to ; the ownership thereof. The Series A Preferred Stock is the only series of Preferred Stock of the Corporation issued and outstanding. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect outstanding shares of each class and series of authorized capital stock of the Corporation are as set forth in the Charter and the Certificate of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate Common Stock have been duly and validly authorized and issued, are fully paid and nonassessable, have been issued in compliance with all federal and state securities laws and were not issued in violation of Designation")or subject to any preemptive rights or other rights to subscribe for or purchase securities, and conform in all material respects to the description thereof contained in the Private Placement Memorandum. Except as disclosed in the SEC Filings or in the Private Placement Memorandum and, except for options issued pursuant to the Company’s 2005 Stock Incentive Plan and 2004 Stock Incentive Plan, the Company does not have outstanding any options to purchase, or any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of its capital stock or any such designations, powers, preferencesoptions, rights, qualificationsconvertible securities or obligations, limitations and restrictions are validor any obligation to repurchase, binding and enforceable and in accordance with all applicable lawsredeem or otherwise acquire any outstanding security of the Company. Except as set forth in the Charter, Certificate the issue and sale of Designation the Shares will not obligate the Company to issue shares of Common Stock or SEC Documents (as defined herein)other securities to any person and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under such securities. The description of the Company’s stock, stock bonus and other stock plans or arrangements and the options or other rights granted and exercised thereunder set forth in the Private Placement Memorandum accurately and fairly presents all material information with respect to such plans, arrangements, options and rights. With respect to each Subsidiary, (i) no subscriptionall the issued and outstanding shares, warrantif any, optionof each Subsidiary’s capital stock have been duly and validly authorized and issued, convertible securityare fully paid and nonassessable, have been issued in compliance with all federal and state securities laws and were not issued in violation of or subject to any preemptive rights or other right (contingent rights to subscribe for or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding securities, and (ii) there is are no commitment by the Corporation outstanding options to purchase, or any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue sharesor sell, subscriptions, warrants, any of the Subsidiary’s capital stock or any such options, rights, convertible securitiessecurities or obligations, or other such rights or any obligation to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in the SEC Documents, the Corporation has no obligation (contingent or otherwise) to purchaserepurchase, redeem or otherwise acquire any outstanding security of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (whether or not any of them is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been issued in compliance in all material respects with all applicable Federal and state securities lawssuch Subsidiary. Except for the Registration Rights Agreement, or as set forth disclosed in the SEC Documents Filings or as set forth in Schedule 2.4 hereofthe Private Placement Memorandum, there are no stockholder agreements, voting agreements or understandings granting similar agreements or arrangements with respect to the Common Stock or Preferred Stock to which the Company is a party, or, to the knowledge of the Company, between or among any Person any right to cause of the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stockCompany’s stockholders.

Authorized Capital Stock. The total number of shares of common stock which the Corporation is authorized to issue is 125,000,000 at a par value of $.001 per share (athe “Common Stock”) and the total number of shares of preferred stock which the corporation is authorized to issue is 50,000,000 at a par value of $.001 per share (“Preferred Stock”). The board of directors is hereby expressly authorized capital stock to provide, out of the Corporation consists of 37,500,000 shares of Common Stock and 10,000,000 unissued shares of Preferred Stock, par value $.001 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 shares of Series A Preferred Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only for one or more series of Preferred Stock and, with respect to each such series, to fix the number of shares constituting such series and the designation of such series, the voting powers, if any, of the shares of such series, and the preferences and relative, participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, of the shares of such series. The powers, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. Except as otherwise provided by law or by the resolution or resolutions adopted by the board of directors designating the rights, powers and preferences of any series of Preferred Stock, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes. Each share of Common Stock shall have one vote on each matter properly submitted to the stockholders of the Corporation issued for their vote, and outstanding. The designationsthe holders of the Common Stock shall vote together as a single class; provided, powershowever, preferencesthat, rightsexcept as otherwise required by law, qualificationsholders of Common Stock shall not be entitled to vote on any amendment to this certificate of incorporation (including certificates of designations filed with the Secretary of State of the State of Delaware from time to time, limitations and restrictions in respect the “Certificate of each class and Incorporation”) that relates solely to the terms of one or more outstanding series of authorized capital stock Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the Corporation are as set forth in the Charter and holders of one or more other such series, to vote thereon pursuant to the Certificate of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation"), and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein), (i) no subscription, warrant, option, convertible security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (ii) there is no commitment by the Corporation to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate of Designation or as set forth in the SEC Documents, the Corporation has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any voting trusts or agreements, stockholders agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (whether or not any of them is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stockIncorporation.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation AVI consists of 37,500,000 (a) 50,000,000 shares of Common Stock and 10,000,000 shares of Preferred Stock, par value $.001 per share0.0001, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 shares of Series A Preferred Stock will be validly _21,575,267shares are issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The Series A Preferred Stock is the only series (b) 2,000,000 shares of Preferred Stock preferred stock, par value $0.0001, none of the Corporation which are issued and outstanding. There are issued and outstanding options to purchase an aggregate 2,866,335 shares of Common Stock, warrants to purchase an aggregate 7,352,003 shares of Common Stock, and no other outstanding subscriptions, warrants, options, convertible securities, or other rights (contingent or other) to purchase or otherwise acquire Common Stock or other equity securities of AVI. There are no agreements or arrangements under which AVI is obligated to register the sale of any of its securities under the Securities Act. Except for an existing warrant held by SuperGen, Inc. to acquire ten percent of the outstanding securities (as defined therein at the time of exercise), there are no anti-dilution or price adjustment provisions contained in any security issued by AVI (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Purchased Securities. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock equity securities of the Corporation AVI are as set forth in the Charter AVI’s Articles of Incorporation, a true and the Certificate correct copy of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")which has been provided to Investor, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. Except as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein), (i) no subscription, warrant, option, convertible security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (ii) there is no commitment by the Corporation to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Certificate AVI’s Articles of Designation or as set forth in the SEC DocumentsIncorporation, the Corporation AVI has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its the equity securities or any interest therein or rights to acquire such securities or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know of any To AVI’s knowledge, there are no voting trusts or agreements, stockholders stockholders’ agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries AVI (whether or not any of them AVI is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been AVI were issued in compliance in all material respects with all applicable Federal federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.

Authorized Capital Stock. (a) The authorized capital stock of the Corporation consists of 37,500,000 shares of Common Stock and 10,000,000 (i) 700,000 shares of Preferred Stock, $.001 par value $.001 per share, of which 5,250,000 shares have been designated Series A 9% Convertible Preferred Stock (the "Series A Preferred Stock"). On October 30, 1998, 7,756,006 shares of Common Stock and 5,000,000 which 200,000 have been designated as shares of Series A Preferred Stock and 500,000 have been designated as shares of Series B Preferred Stock, and (ii) 11,000,000 shares of Common Stock. Immediately prior to the Closing, 200,000 shares of Series A Preferred Stock and 2,140,000 shares of Common Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof. The stockholders of record and holders of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Corporation, and the number of shares of Series A Preferred Stock is or of Common Stock and the only series number of Preferred Stock of such subscriptions, warrants, options, convertible securities, and other such rights held by each, are as set forth in the Corporation issued and outstandingattached Schedule 4.4. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Corporation are as set forth in the Charter and the Restated Certificate of Designation of the Series A Preferred Stock and amendments thereto (the "Certificate of Designation")Incorporation, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. As of the date hereof, each outstanding share of Series A Preferred Stock is convertible into one share of Common Stock. Except as provided for in the Restated Certificate of Incorporation or as set forth in the Charter, Certificate of Designation or SEC Documents (as defined herein)attached Schedule 4.4, (i) no Person owns of record or is known to the Corporation to own beneficially any share of capital stock of the Corporation, (ii) no subscription, warrant, option, convertible security, or other right (contingent or otherwiseother) to purchase or otherwise acquire equity securities of the Corporation from the Corporation or any of its subsidiaries is authorized or outstanding and (iiiii) there is no commitment by the Corporation to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter or the Restated Certificate of Designation Incorporation or as set forth in the SEC Documentsattached Schedule 4.4, the Corporation has no obligation (contingent or otherwiseother) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof. The Corporation does not know Except as set forth in any of any the Related Documents, to the best of the Corporation's knowledge, there are no voting trusts or agreements, stockholders stockholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Corporation or any of its subsidiaries (whether or not any of them the Corporation is a party thereto), except for this Agreement and the Stockholders Agreement. All of the outstanding securities of the Corporation have been were issued in compliance in all material respects with all applicable Federal and state securities laws. Except for the Registration Rights Agreement, or as set forth in the SEC Documents or as set forth in Schedule 2.4 hereof, there are no agreements or understandings granting to any Person any right to cause the Corporation to effect the registration under the Securities Act of 1933, as amended (the "Securities Act"), of any shares of its capital stock.