Common use of Authorized Capital Stock Clause in Contracts

Authorized Capital Stock. The authorized capital stock of (a) the Company consists of (i) 3,000,000 shares of preferred stock, no par value per share (the "Preferred Stock"), of which 730,000 shares have been designated "Series A Preferred" and 850,000 shares designated "Series A-I Preferred" and (ii) 5,000,000 shares of common stock (the "Common Stock") and (b) Bartxxx xxxsists of 1,000 shares of common stock, par value $.01 per share. Immediately prior to the Closing, all of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 shares of Common Stock will be issued and outstanding all of which will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof, 525,492 shares of Series A Preferred Stock will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated July 22, 1994, by and among the Company and the Purchasers set forth on "Schedule I" thereto (the "1994 Stock Purchase Agreement"), 566,874 shares of Series A-I Preferred will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated September 22, 1995, by and among the Company and the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of capital stock of the Company or Bartxxx xxxe been issued or reserved for issuance, except 385,000 shares of Common Stock reserved for issuance in the event options granted pursuant to the 1989 and 1990-1991 Stock Option Plans of the Company are exercised, 730,000 shares of Common Stock reserved for issuance in the event of the conversion

Authorized Capital Stock. The authorized capital stock of (a) the Company consists of (i) 3,000,000 shares of preferred stockPreferred Stock, no par value per share (the "Preferred Stock"), of which 730,000 shares have been designated "Series A Preferred" Preferred and 850,000 shares which have been designated "Series A-I Preferred" A-1 Preferred and 155,000 shares will have been designated Series A-2 Preferred in connection with this Closing and (ii) 5,000,000 shares of common stock stock, no par value per share (the "Common Stock") and (b) Bartxxx xxxsists of 1,000 shares of common stock, par value $.01 per share. Immediately prior to the Closing, all of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 1,983,593 shares of Common Stock will be issued and outstanding outstanding, all of which will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof, 525,492 557,653 shares of Series A Preferred Stock will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated July 22, 1994, by and among the Company and the Purchasers set forth on "Schedule I" I thereto (the "1994 Stock Purchase Agreement"), 566,874 ) and 601,569 shares of Series A-I A-1 Preferred will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated as of September 22, 1995, 1995 by and among the Company and the purchasers Purchasers set forth on "Schedule I" I thereto (the "1995 Stock Purchase Agreement") and 128,775 136,658 shares of Series A-I A-1 Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, Agreement dated November 16, 1995, between the Company and Northstar Creditanstalt American CorporationCorporation and 40,000 shares of Series A-2 Preferred will be issued on even date herewith pursuant to this Agreement. No other shares of capital stock of the Company or Bartxxx xxxe been issued or reserved for issuance, except 385,000 shares of Common Stock reserved for issuance in the event options granted pursuant to the 1989 and 1990-1991 Stock Option Plans of the Company are exercised, 730,000 shares of Common Stock reserved for issuance in the event of the conversionconversion of the shares of Series A Preferred Stock and 52,000 shares of Common Stock reserved for issuance in the event of the exercise of the Series A Warrant, both having been granted pursuant to the 1994 Stock Purchase Agreement, 850,000 shares of Common Stock reserved for issuance in the event of the conversion of the shares of Series A-I Preferred Stock granted pursuant to the 1995 Stock Purchase Agreement, 86,462 shares of Common Stock reserved for issuance in the event of the exercise of warrants granted pursuant to the Warrant Agreement, dated September 22, 1995, between the Company and Dublind Investments, L.L.C., 91,177 shares of Common Stock reserved for issuance in the event of the exercise of the warrants granted pursuant to the Warrant Agreement, dated November 16, 1995, between the Company and Creditanstalt Bankverein ("Creditanstalt"), 94,010 shares of Common Stock reserved for

Authorized Capital Stock. The (a) As of August 10, 2009, the authorized capital stock of (a) the Company consists shall consist solely of (i) 3,000,000 Thirty Million (30,000,000) shares of Common Stock, of which One Million Seven Hundred Sixty Seven Thousand One Hundred Fifty Six (1,767,156) shares are issued and outstanding; and (ii) Six Million (6,000,000) shares of preferred stock, no $.0001 par value per share (the "Preferred Stock")share, of which 730,000 (A) Nine Hundred Sixty Two Thousand One Hundred One (962,101) shares have been designated "Series A Preferred" Preferred Stock and 850,000 shares designated "Series A-I Preferred" and (ii) 5,000,000 shares of common stock (the "Common Stock") and (b) Bartxxx xxxsists of 1,000 shares of common stock, par value $.01 per share. Immediately prior to the Closing, all of the capital stock which are issued and outstanding, (B) One Million Eight Hundred Thousand (1,800,000) shares have been designated Series B Preferred Stock, of Bartxxx xxxch is which One Million Six Hundred Nineteen Thousand One Hundred Twenty Seven (1,619,127) shares are issued and outstanding will be owned by the Companyand (C) One Million Three Hundred Fifty (1,350,000) shares have been designated as Series C Preferred Stock, 1,983,450 of which Three Hundred Sixty Five Thousand Nine Hundred Ninety Six (365,996) shares are issued and outstanding. The Company has reserved for issuance (i) sufficient shares of Common Stock will be issued for issuance upon conversion or redemption of all outstanding or authorized shares of the Other Preferred Stock, (ii) Two Million Six Hundred Thousand (2,600,000) shares of Common Stock upon exercise of options pursuant to its Amended and outstanding Restated 2004 Stock Option Incentive Plan, as amended by that certain First Amendment, dated as of July 23, 2009, (iii) Nine Million (9,000,000) shares of Common Stock upon exercise of the Series B Warrants and (iv) Six Million Seven Hundred Fifty Thousand (6,750,000) shares of Common Stock upon exercise of the Series C Warrants. (b) Immediately after the Closing and assuming the issuance and sale of all of which will be validly issued and outstandingthe Series B Units, fully paid and nonassessable with no personal liability attaching to the ownership thereof, 525,492 shares capitalization of Series A Preferred Stock will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated July 22, 1994, by and among the Company and the Purchasers shall be as set forth on "Schedule I" thereto (7.4, which reflects the "1994 Stock Purchase Agreement"), 566,874 shares capitalization of Series A-I Preferred will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated September 22, 1995, by and among the Company both on an actual shares outstanding basis and on a fully diluted basis assuming conversion of all convertible securities and the purchasers set exercise of all outstanding options and warrants and all options reserved for future grant under any stock option plans and sets forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares of Series A-I Preferred will be issued and outstanding pursuant any other right to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other purchase shares of capital stock of the Company or Bartxxx xxxe been issued any of its Subsidiaries. (c) Except as set forth in Schedule 7.4, no Person is entitled to any preemptive right or reserved for issuanceright of first refusal with respect to the issuance of any Series D Preferred Shares, except 385,000 shares as contemplated by the Second A&R Securityholders’ Agreement or the Second Amended Series A Designation. There are no outstanding preemptive rights, options, warrants, conversion rights, agreements or other rights to purchase any of the authorized but unissued capital stock of the Company or any of its Subsidiaries or any securities convertible or exchangeable into any capital stock of the Company or any of its Subsidiaries, other than (i) those issued, reserved or committed to be issued pursuant to this Agreement, (ii) those contemplated by the Second A&R Securityholders’ Agreement and (iii) those set forth on the Schedule 7.4. (d) Neither the Company nor any of its Subsidiaries is a party to any agreement with the holder of any of its securities that requires the Company or any of its Subsidiaries to purchase any of such securities from their holder under any circumstances, except for the redemption rights of the Series D Preferred Shares contemplated by the Certificate of Incorporation. (e) Except as set forth in the Second A&R Securityholders’ Agreement or the Certificate of Incorporation, neither the Company nor any of its Subsidiaries is a party or subject to any agreement or understanding, and neither the Company nor any of its Subsidiaries has received any written notice of any agreement or understanding between any Persons, that affects or relates to the voting or giving of written consents with respect to any of the capital stock of the Company or any of its Subsidiaries. (f) All outstanding securities of the Company and each of its Subsidiaries were issued in compliance with all federal and state securities laws. (g) Neither the Company nor any of its Subsidiaries has registered any securities under the Securities Act or the Securities Exchange Act. Except as provided in the A&R Registration Rights Agreement, neither the Company nor any of its Subsidiaries is presently under any obligation or has granted any rights to register any of its securities under the Securities Act. (h) The Series D Preferred Shares, when issued, sold and delivered in accordance with the terms of this Agreement, will be duly and validly issued, fully paid, non-assessable and free and clear of all Liens except any created by or through the holder thereof, and will be free of restrictions on transfer other than restrictions on transfer under this Agreement and the Second A&R Securityholders’ Agreement and under applicable state and federal securities laws, and will be issued in compliance with all state and federal securities laws. (i) The Conversion Common Stock Shares issuable upon conversion or redemption of the Series D Preferred Shares have been duly and validly reserved for issuance and, upon issuance in accordance with the event options granted pursuant to the 1989 and 1990-1991 Stock Option Plans conversion or redemption provisions of the Company are exercisedSeries D Preferred Shares, 730,000 shares will be duly and validly issued, fully paid, non-assessable and free and clear of Common Stock reserved for issuance all Liens except any created by or through the holder thereof, and will be free of restrictions on transfer other than restrictions on transfer under this Agreement and the Second A&R Securityholders’ Agreement and under applicable state and federal securities laws, and will be issued in the event of the conversioncompliance with all state and federal securities laws then in effect.

Authorized Capital Stock. (a) The Company’s authorized capital stock of (a) the Company consists of (i) 3,000,000 30,000,000 shares of preferred stockPreferred Stock, no par value $0.001 per share (the "“Preferred Stock"”), of which 730,000 15,000,000 shares have been designated "Series A Preferred" Preferred Stock, and 850,000 shares designated "Series A-I Preferred" and (ii) 5,000,000 30,000,000 shares of common stock (the "Common Stock") and (b) Bartxxx xxxsists of 1,000 shares of common stock, par value $.01 per share. Immediately prior to the Initial Closing, all of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 4,716,908 shares of Common Stock will be issued and outstanding all no shares of which Preferred Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching nonassessable. In addition, immediately prior to the ownership thereofapplicable Closing, 525,492 not more than 3,457,000 shares of Series A Preferred Common Stock will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated July 22, 1994, by and among the Company and the Purchasers set forth on "Schedule I" thereto (the "1994 Stock Purchase Agreement"), 566,874 shares of Series A-I Preferred will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated September 22, 1995, by and among the Company and the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of capital stock of the Company or Bartxxx xxxe been issued or reserved for issuanceissuance upon exercise of outstanding options, except 385,000 warrants or other securities exchangeable for or convertible into Common Stock, 4,000,000 additional shares of Common Stock reserved for issuance upon exercise of options available for grant under the Company’s 2002 Stock Option Plan, of which 305,000 shares have been exercised to-date; and no shares are held in the event options granted pursuant Company’s treasury. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of the Company’s authorized capital stock are as set forth in the Charter. Except as set forth in the Schedule 2.05 hereto, the Company has no obligation (contingent or other) to purchase, repurchase, redeem, retire 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. Except for the Investors’ Rights Agreement, the Co-Sale and First Refusal Agreement and the Voting Agreement, to the 1989 and 1990Company’s knowledge, there are no voting trusts or agreements, stockholders’ agreements, pledge agreements, buy-1991 Stock Option Plans sell agreements, rights of first refusal, preemptive rights or other similar rights or proxies relating to any of the Company are exercisedCompany’s securities, 730,000 or agreements relating to the issuance, sale, redemption, transfer or other disposition of the Company’s securities. (b) The Preferred Shares have been duly authorized and, when issued in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable shares of Series A Preferred Stock and will be free and clear of all Liens, charges, restrictions, claims and encumbrances, other than Liens, charges, restrictions, claims and encumbrances that were created by the Purchasers and restrictions on transfer imposed by this Agreement, the Co-Sale and First Refusal Agreement, the Securities Act of 1933, as amended (the “Securities Act”) and applicable state securities laws. The Conversion Shares have been duly reserved for issuance upon conversion of the Preferred Shares and, when so issued, will be duly authorized, validly issued, fully paid and nonassessable shares of Common Stock reserved for issuance in and will be free and clear of all Liens, charges, restrictions, claims and encumbrances, other than Liens, charges, restrictions, claims and encumbrances that were created by the event of Purchasers and restrictions on transfer imposed by this Agreement, the conversionCo-Sale and First Refusal Agreement, the Securities Act and applicable state securities laws.

Authorized Capital Stock. (i) The authorized capital stock of (a) the Company consists of: (A) 18,000,000 shares of Common Stock, and (iB) 3,000,000 5,000,000 shares of preferred stock, no par value per share (none of which are issued and outstanding. As of the "Preferred Stock")date of this Agreement, of which 730,000 shares have been designated "Series A Preferred" and 850,000 shares designated "Series A-I Preferred" and (ii) 5,000,000 shares of common stock (the "Common Stock") and (b) Bartxxx xxxsists of 1,000 shares of common stock, par value $.01 per share. Immediately prior to the Closing, all of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 shares of Common Stock will be issued and outstanding all of which will be validly issued and currently authorized: (x) 11,011,184 shares are outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof, 525,492 (y) 2,773,243 shares of Series A Preferred Stock will be issued and outstanding are reserved for issuance pursuant to the Convertible Stock Purchase AgreementXxxxxx Capital Group, dated July 22Inc. 2002 Incentive Compensation Plan, 1994, by and among (z) no shares were reserved for issuance pursuant to securities (other than the Company Preferred Shares and the Purchasers set forth on "Schedule I" thereto (the "1994 Stock Purchase Agreement")Designated Preferred) exercisable or exchangeable for, 566,874 or convertible into, shares of Series A-I Common Stock. (ii) In the event the Preferred will be Shares are issued and outstanding pursuant to at the Convertible Stock Purchase AgreementClosing, dated September 22, 1995, by and among upon filing the Company and Restated Charter the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of authorized capital stock of the Company shall consist of: (A) 45,000,000 shares of Common Stock, and (B) 10,000,000 shares of preferred stock, 2,400,000 of which shall be designated as the Preferred Shares. In the event the Preferred Shares are issued upon mandatory exchange for the Designated Preferred, upon filing the Restated Charter the authorized capital stock of the Company shall consist of: (A) 45,000,000 shares of Common Stock, and (B) 10,000,000 shares of preferred stock, 2,400,000 of which shall be designated as Preferred Shares and 2,400,000 of which shall be designated as the Designated Preferred. (iii) If a Potential Delay occurs and the Designated Preferred is issued at the Closing, upon filing of the Designated Preferred Certificate of Designation, the authorized capital stock of the Company shall consist of: (A) 18,000,000 shares of Common Stock, and (B) 5,000,000 shares of preferred stock, 2,400,000 of which shall be designated as the Designated Preferred. (iv) Except as disclosed on Schedule 3(c)(iv), there are no (A) outstanding Convertible Securities or Bartxxx xxxe been issued options, warrants or reserved other rights exercisable for issuancethe purchase of any shares of Capital Stock or Convertible Securities (“Stock Purchase Rights”), except 385,000 (B) stock appreciation rights, performance stock awards or other employee incentive awards the value of which is determined by reference to the value of the Common Stock or (C) other agreements or commitments obligating the Company or any of its Subsidiaries to issue, sell, repurchase, redeem or otherwise acquire any shares of Capital Stock, Convertible Securities, Stock Purchase Rights or any securities of any Subsidiary. The issuance of the Preferred Shares and Conversion Shares as contemplated herein will not cause the number of shares of Common Stock reserved for issuance in the event options granted issuable pursuant to the 1989 and 1990any outstanding Convertible Securities or Stock Purchase Rights to increase as a result of any anti-1991 Stock Option Plans dilution provisions relating thereto. There are no authorized or outstanding bonds, debentures, notes or other obligations of the Company the holders of which have the right to vote with the holders of Common Stock on any matter. (v) All outstanding shares of Capital Stock (including any outstanding restricted stock) have been duly authorized and validly issued and are exercisedfully-paid and nonassessable and have been offered and issued without violation of any preemptive rights of any Person or any applicable registration requirements of applicable securities laws. All outstanding Stock Purchase Rights have been issued in compliance, 730,000 in all material respects, with any applicable registration requirements of applicable securities laws, and all shares of Common Stock reserved issued upon exercise thereof will have been, upon such issuance, duly authorized and validly issued without violation of any preemptive rights of any Person and will be fully-paid and nonassessable. (vi) Except for issuance Exhibits 9.1, 9.2 and 9.3 to the Company’s most recent Form 10-K included in the event Available Company SEC Documents, and the Voting Agreement contemplated hereby, there are no voting trusts, proxies or other agreements to which the Company or, to the Knowledge of the conversionCompany any of its executive officers or directors, is a party or by which it is bound with respect to the voting of any shares of Capital Stock affecting the voting of any shares of Capital Stock. (vii) Except for Exhibit 4.16 to the Company’s most recent Form 10-K included in the Available Company SEC Documents, and the Registration Rights Agreement contemplated hereby, there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act. (viii) There are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem any security of the Company or any equity security, or security convertible into or exercisable for, any equity security of any of its Subsidiaries.

Authorized Capital Stock. (a) The authorized capital stock of (a) the Company Purchaser consists of of: (i) 3,000,000 1,552,450 shares of preferred stockSeries A Convertible Preferred Stock, no par value $0.01 per share (the "Purchaser Preferred Stock"), of which 730,000 1,552,450 shares have been designated "Series A Preferred" are issued and 850,000 shares designated "Series A-I Preferred" and outstanding. (ii) 5,000,000 shares of common stock (the "Common Stock") and (b) Bartxxx xxxsists of 1,000 92,182,450 shares of common stock, consisting of (A) 60,000,000 shares of Class A Voting Common Stock, par value $.01 0.01 per share. Immediately prior to share (the Closing"Purchaser Class A Common Stock"), all of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 shares of Common Stock will be issued and outstanding all of which will be validly 19,960,500 shares are issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof, 525,492 (B) 30,000,000 shares of Series A Preferred Stock will be Class B Non-Voting Common Stock, par value $0.01 per share (the "Purchaser Class B Common Stock"), of which 2,985,474 shares are issued and outstanding, (C) 150,000 shares of Senior Class C Common Stock, par value $0.01 per share (the "Purchaser Class C Common Stock"), of which 141,000 shares are issued and outstanding pursuant to the Convertible Stock Purchase Agreementand (D) 480,000 shares of Class D Common Stock, dated July 22, 1994, by and among the Company and the Purchasers set forth on "Schedule I" thereto par value $0.01 per share (the "1994 Stock Purchase AgreementPurchaser Class D Common Stock"), 566,874 of which 480,000 shares of Series A-I Preferred will be are issued and outstanding pursuant to (the Convertible Purchaser Class A Common Stock, Purchaser Class B Common Stock, Purchaser Class C Common Stock Purchase Agreement, dated September 22, 1995, by and among the Company and the purchasers set forth on "Schedule I" thereto (Purchaser Class D Common Stock are collectively referred to herein as the "1995 Stock Purchase AgreementPurchaser Common Stock") ). The designations, powers, preferences, rights, qualifications, limitations and 128,775 shares restrictions in respect of Series A-I Preferred will be issued each class and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares series of authorized capital stock of Purchaser are as set forth in the Company Purchaser Charter 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 attached Schedule 4.04(a)(i), (i) no - 33 - subscription, warrant, option, convertible security, or Bartxxx xxxe other right (contingent or other) to purchase or otherwise acquire equity securities of Purchaser is authorized or outstanding that has been issued by Purchaser, and (ii) there is no commitment by Purchaser to issue shares, subscriptions, warrants, options, convertible securities, or reserved for issuanceother such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as set forth in the Purchaser Financial Statements (as defined below) or the Purchaser Charter Documents, each of which has been delivered to the Company, Purchaser has no obligation to purchase, redeem or otherwise acquire any of its equity securities or any other interest therein or to pay any dividend or make any other distribution in respect thereof. To the knowledge of Purchaser after reasonable inquiry, except 385,000 shares of Common Stock reserved for issuance as set forth in the event options granted pursuant attached Schedule 4.04(a)(ii), there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to the 1989 and 1990-1991 Stock Option Plans any securities of Purchaser (whether or not Purchaser is a party thereto). All of the Company are exercised, 730,000 shares outstanding securities of Common Stock reserved for issuance Purchaser were issued in the event of the conversioncompliance with all Federal and state securities laws.

Authorized Capital Stock. The As of the date hereof, the authorized capital stock of (a) the Company consists of (i) 3,000,000 150,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, no par value $0.001 per share (the "Preferred StockPREFERRED STOCK"), of which 730,000 170,000 shares have been designated "Series A Preferred" Senior Redeemable Preferred Stock, 1,620,700 shares have been designated Series B Convertible Preferred Stock and 850,000 shares 1,650,000 have been designated "Series A-I Preferred" C Convertible Preferred Stock. As of the date hereof and (ii) 5,000,000 shares of common stock (the "Common Stock") and (b) Bartxxx xxxsists of 1,000 shares of common stock, par value $.01 per share. Immediately immediately prior to the Closing, all of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 76,371,375 shares of Common Stock will be (exclusive of shares of Common Stock (the "ADDITIONAL OPTION SHARES") issued upon exercise of options that are outstanding as of the date hereof or are issued after the date hereof pursuant to the Company's Amended and outstanding all Restated 1998 Stock Option Plan (the "1998 PLAN")), 99,804.2276 shares Series A Preferred Stock, and 1,077,026 shares of which Series B Preferred Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereofthereof (other than such liability, 525,492 if any, as may be (i) imposed by Section 630 of the New York Business Corporation Law or (ii) attributable to acts of the Purchaser) and no shares of Series C Preferred Stock will have been issued. The Company has reserved 21,303,000 shares of Common Stock for issuance pursuant to the 1998 Plan of which 15,014,883 shares (plus such shares as are subject to options issued under the 1998 Plan between the date of this Agreement and the Closing Date) will be subject to outstanding unexercised options immediately prior to the Closing. 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 Company, and the number of shares of Common Stock, Series A Preferred Stock will be issued and outstanding pursuant to the Convertible Series B Preferred Stock Purchase Agreement, dated July 22, 1994, by and among the Company and the Purchasers number of such subscriptions, warrants, options, convertible securities, and other such rights held by each as of the date hereof, are as set forth on "in the attached Schedule I" thereto (the "1994 Stock Purchase Agreement")III. The designations, 566,874 shares powers, preferences, rights, qualifications, limitations and restrictions in respect of Series A-I Preferred will be issued each class and outstanding pursuant to the Convertible Stock Purchase Agreement, dated September 22, 1995, by and among the Company and the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares series of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of authorized capital stock of the Company are as set forth in the Charter, 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 attached Schedule III, as of the date hereof and immediately prior to the Closing, (i) no person (other than a person receiving capital stock of the Company in accordance with the procedures set forth in the Amended and Restated Shareholders Agreement of the Company dated as of May 13, 1999 (the "EXISTING SHAREHOLDERS AGREEMENT")) owns or Bartxxx xxxe been issued or reserved for issuance, except 385,000 shares will own of record any share of Common Stock reserved (except for issuance in Additional Option Shares) or Preferred Stock, (ii) no subscription, warrant, option, convertible security, or other right (contingent or other) to purchase or otherwise acquire equity securities of the event Company (other than stock options granted issued after the date hereof pursuant to the 1989 1998 Plan) is or will be authorized or outstanding and 1990(iii) except for options that the Company has committed to issue to employees pursuant to the 1998 Plan that have not yet been issued, there is or will be 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 securities any evidence of indebtedness or asset. Except as set forth in this Agreement, in the attached Schedule III or in the Charter, the Company will have no obligation (contingent or other) 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. Except for this Agreement, the Existing Shareholders Agreement and the stock option agreements between the Company and each option holder of the Company, to the best of the Company's knowledge there are no voting trusts or agreements, shareholders' agreements, pledge agreements, buy-1991 Stock Option Plans sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company are exercised, 730,000 shares or any of Common Stock reserved for issuance in its subsidiaries (whether or not the event Company or any of its subsidiaries is a party thereto). All of the conversionoutstanding securities of the Company were issued in compliance with all applicable Federal and state securities laws.

Authorized Capital Stock. The authorized capital stock of (a) the Company consists of (i) 3,000,000 40,000,000 shares of preferred stockPreferred Stock, no $0.001 par value per share (the "Preferred Stock"), of which 730,000 7,330,000 shares have been designated "Series A Preferred" Convertible Preferred Stock and 850,000 8,000,000 shares have been designated "Series A-I Preferred" B Convertible Preferred Stock, and (ii) 5,000,000 70,000,000 shares of common stock (the "Common Stock") and (b) Bartxxx xxxsists of 1,000 shares of common stock, $0.001 par value $.01 per sharevalue. Immediately prior to the First Closing, all of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 10,012,000 shares of Common Stock will be issued and outstanding all of which will be validly issued and outstanding, fully paid and nonassessable nonassessable, with no personal liability attaching to the ownership thereof, 525,492 and 7,330,000 shares of Series A Convertible Preferred Stock will be validly issued and outstanding outstanding, fully paid and nonassessable, with no personal liability attached to the ownership thereof. An aggregate of 15,330,000 shares of Common Stock has been reserved for issuance upon conversion of the Series A Convertible Preferred Stock and the Series B Convertible Preferred Stock. An aggregate of 5,000,000 shares of Common Stock (the "Reserved Employee Shares") has been reserved for issuance pursuant to the Convertible Company's Stock Purchase AgreementOption Plan, dated July 22of which options to purchase 1,656,000 shares have been granted to date. The designations, 1994powers, by preferences, rights, qualifications, limitation and among the Company restrictions in respect of each class and the Purchasers set forth on "Schedule I" thereto (the "1994 Stock Purchase Agreement"), 566,874 shares series of Series A-I Preferred will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated September 22, 1995, by and among the Company and the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of authorized capital stock of the Company are as set forth in the Charter, a copy of which is attached as Exhibit B, 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 attached Disclosure Schedule, (i) no person owns of record or Bartxxx xxxe been issued or reserved for issuance, except 385,000 shares is known to the Company to own beneficially any share of Common Stock reserved for issuance in the event options granted pursuant or Preferred Stock, (ii) no subscription, warrant, option, convertible security, or other right (contingent or other) to the 1989 and 1990-1991 Stock Option Plans purchase or otherwise acquire equity securities of the Company are exercisedis authorized or outstanding and (iii) there is no commitment by the Company to issue shares, 730,000 shares subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of Common Stock reserved any of its equity securities any evidence of indebtedness or asset. Except as provided for issuance in the event Charter or as set forth in the attached Disclosure Schedule, the Company has no obligation (contingent or other) 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. Except as set forth in the Disclosure Schedule, neither the Company nor, to the Company's knowledge, without having investigated such matter, any other person is party to 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 conversionCompany (whether or not the Company is a party thereto), and all such rights under any such agreement have been waived or exercised by all such persons with respect to the transactions contemplated hereby. All of the outstanding securities of the Company were issued in compliance with all applicable Federal and state securities laws.

Authorized Capital Stock. The As of the date hereof, and after the filing of the Certificate of Designation with the Delaware Secretary of State, the authorized capital stock of (a) the Company consists of (ia) 3,000,000 400,000,000 shares of preferred stockCommon Stock, no (b) 100,000,000 shares of Class A Common Stock, $.01 par value per share share, and (c) 10,000,000 shares of Preferred Stock, $.01 par value per share, 75,000 shares of which are designated as Series D Convertible Preferred Stock. As of September 15, 2000, there were 58,684,132 shares of Common Stock outstanding and no shares of Class A Common Stock or Preferred Stock outstanding. All of the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. The Company has reserved for issuance upon conversion of the Series D Preferred Stock 14,943,960 shares of Common Stock. As of September 15, 2000, the Company had reserved and available for stock options to be granted and issued under its 1998 Stock Option Plan (the "Preferred Stock1998 STOCK OPTION PLAN"), of which 730,000 shares have been designated "Series A Preferred" and 850,000 shares designated "Series A-I Preferred" and (ii) 5,000,000 shares of common stock its 1999 Stock Option Plan (the "1999 STOCK OPTION PLAN") and its 1999 Non-Employee Directors Plan (the "DIRECTOR OPTION PLAN" and together with the 1998 Stock Option Plan and the 1999 Stock Option Plan, the "COMPANY STOCK OPTION PLANS"), 191,078, 7,779,500 and 465,000 shares of Common Stock, respectively. The Company has reserved for issuance 18,676,000 shares of Common Stock issuable upon the exercise of the warrants set forth on Schedule 3.2 hereto (the "EXISTING WARRANTS"). Other than as set forth on Schedule 3.2 hereof, as of September 15, 2000, there were not outstanding or existing any options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of its capital stock or any securities exercisable for or convertible into shares of its capital stock, except for (a) options to purchase an aggregate of 191,078, 5,384,095 and 271,270 shares of Common Stock outstanding under the 1998 Stock Option Plan, the 1999 Stock Option Plan and the Director Option Plan, respectively, and (b) Bartxxx xxxsists an aggregate of 1,000 2,156,320 shares of common stock, par value $.01 per share. Immediately prior to issuable upon the Closing, all exercise of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 shares of Common Stock will be issued and outstanding all of which will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof, 525,492 shares of Series A Preferred Stock will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated July 22, 1994, by and among the Company and the Purchasers set forth on "Schedule I" thereto (the "1994 Stock Purchase Agreement"), 566,874 shares of Series A-I Preferred will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated September 22, 1995, by and among the Company and the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of capital stock of the Company or Bartxxx xxxe been issued or reserved for issuance, except 385,000 shares of Common Stock reserved for issuance in the event options granted pursuant to the 1989 and 1990-1991 Stock Option Plans of the Company are exercised, 730,000 shares of Common Stock reserved for issuance in the event of the conversionExisting Warrants.

Authorized Capital Stock. The As of the date hereof, the Company’s authorized capital stock of (a) the Company consists of (i) 3,000,000 120,000,000 shares of preferred stock, no par value per share (the "Preferred Common Stock"), of which 730,000 71,347,323 shares have been designated "Series A Preferred" are issued and 850,000 shares designated "Series A-I Preferred" outstanding, and (ii) 5,000,000 shares of common stock (the "Common Stock") and (b) Bartxxx xxxsists of 1,000 shares of common preferred stock, par value $.01 0.001 per share. Immediately prior to , of which (A) 1,000,000 have been designated Series B Convertible Preferred Stock (the Closing“Series B Stock”), all of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 2 shares of Common Stock will be issued and outstanding all of which will be validly are issued and outstanding, (B) 13,000 have been designated Series C Convertible Preferred Stock (the “Series C Stock”), 10,000 shares of which are issued and outstanding, and (C) 25,000 have been designated Series D Convertible Preferred Stock (the “Series D Stock”), 11,915 shares of which are issued and outstanding. Except as set forth on Schedule 2.2, the Company has not issued any shares since September 30, 2012 other than pursuant to employee or director equity incentive plans or purchase plans approved by the Board of Directors of the Company (the “Board”) and upon the exercise or conversion of options, warrants and preferred stock outstanding on such date. 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 the ownership thereof, 525,492 shares of Series A Preferred Stock will be issued and outstanding pursuant any preemptive rights or other rights to the Convertible Stock Purchase subscribe for or purchase securities. Except as set forth in Schedule 2.2 or as contemplated by this Agreement, dated July 22, 1994, by and among the Company and the Purchasers set forth on "Schedule I" thereto (the "1994 Stock Purchase Agreement")does not have outstanding any options to purchase, 566,874 shares of Series A-I Preferred will be issued and outstanding pursuant or any preemptive rights or other rights to the Convertible Stock Purchase Agreementsubscribe for or to purchase, dated September 22any securities or obligations convertible into, 1995or any agreements or commitments to issue or sell, by and among the Company and the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of capital stock or other securities of the Company and there are no agreements or commitments obligating the Company to repurchase, redeem, or otherwise acquire capital stock or other securities of the Company. Except as set forth in Schedule 2.2 or as contemplated by this Agreement, there are no agreements to which the Company is a party or by which it is bound with respect to the voting (including without limitation voting trusts or proxies), registration under the Securities Act, or sale or transfer (including without limitation agreements relating to pre-emptive rights, rights of first refusal, rights of first offer, buy-sell rights, co-sale rights or “drag-along” rights) of any securities of the Company. With respect to each Subsidiary, (i) the Company owns 100% of each such Subsidiary’s capital stock, (ii) all the issued and outstanding shares of each such Subsidiary’s capital stock have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with applicable 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, (iii) there are no 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 or sell, shares of any Subsidiary’s capital stock, and (iv) there are no agreements or commitments obligating any Subsidiary to repurchase, redeem, or otherwise acquire capital stock or other securities of the Company or Bartxxx xxxe been issued any such Subsidiary. The Company does not directly or reserved for issuanceindirectly own, except 385,000 shares or have a right to acquire, any equity or similar interest in, or any interest convertible or exchangeable or exercisable for, any equity or similar interest in, any Person, other than the Subsidiaries. For purposes of Common Stock reserved for issuance in this Agreement, the event options granted pursuant to the 1989 and 1990term “Person” shall mean any individual, partnership, company, limited liability company, joint venture, association, joint-1991 Stock Option Plans of the Company are exercisedstock company, 730,000 shares of Common Stock reserved for issuance in the event of the conversiontrust, unincorporated organization, government or agency or political subdivision thereof, or other entity.

Authorized Capital Stock. The authorized capital stock Except as disclosed in or contemplated by the disclosure documents, as described in Section 4.19 hereof, distributed on December 18, 1998 to potential purchasers of the Company's Preferred Stock (the "Offering Materials"), the Company had, at September 30, 1998, (a) the Company consists of (i) 3,000,000 shares of preferred stock, no par value per share (the "Preferred Stock"), of which 730,000 shares have been designated "Series A Preferred" and 850,000 shares designated "Series A-I Preferred" and (ii) 5,000,000 shares of common stock (the "Common Stock") and (b) Bartxxx xxxsists of 1,000 shares of common stock, par value $.01 per share. Immediately prior to the Closing, all of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 24,071,255 shares of Common Stock will be issued and outstanding all (excluding, as of which will be validly issued and outstandingSeptember 30, fully paid and nonassessable with no personal liability attaching to the ownership thereof1998, 525,492 (i) 2,252,406 shares of Series A Preferred Common Stock will be issued and issuable upon the exercise of outstanding pursuant to options (at a weighted average price of $10.85 per share) under the Convertible Company's 1996 Stock Purchase AgreementIncentive Plan, dated July 22, 1994, by and among the Company and the Purchasers set forth on "Schedule I" thereto as amended (the "1994 Stock Purchase Agreement1996 Plan"), 566,874 shares ; (ii) an aggregate of Series A-I Preferred will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated September 22, 1995, by and among the Company and the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of capital stock of the Company or Bartxxx xxxe been issued or reserved for issuance, except 385,000 846,345 additional shares of Common Stock reserved for issuance in future option grants or stock issuances under the event options granted pursuant to 1996 Plan and the 1989 and 1990-1991 Company's Employee Stock Option Plans of the Company are exercised, 730,000 Purchase Plan; (iii) 46,000 shares of Common Stock reserved issuable upon the exercise of outstanding warrants (at a weighted average exercise price of $2.23 per share); (iv) up to 2,100,000 shares of Common Stock issuable upon the achievement of certain developmental milestones relating to the Company's compounds; and (v) additional shares of Common Stock available for issuance in 1999, 2000 and 2001 as a result of automatic annual increases in the event number of shares available for issuance under the 1996 Plan) and (b) no shares of preferred stock issued or outstanding. The issued and outstanding shares of the conversionCompany's Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, 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 description thereof contained in the Offering Materials. Except as disclosed or contemplated by in the Offering Materials (including the issuance of options under the 1996 Plan and the issuance of shares of Common Stock pursuant to the Company's Employee Stock Purchase Plan after September 30, 1998), and the 4,800,000 shares of Common Stock the Company has agreed to issue and sell pursuant to Stock Purchase Agreements dated December 10, 1998, 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, any shares of capital stock of any subsidiary or any such options, rights, convertible securities or obligations. 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 Offering Materials accurately and fairly presents the information required to be shown with respect to such plans, arrangements, options and rights.

Authorized Capital Stock. The authorized capital stock As disclosed in the Exchange Act Reports, as defined in paragraph 2.05 of (a) the Company consists of (i) 3,000,000 shares of preferred stock, no par value per share (the "Preferred Stock"), of which 730,000 shares have been designated "Series A Preferred" and 850,000 shares designated "Series A-I Preferred" and (ii) 5,000,000 shares of common stock (the "Common Stock") and (b) Bartxxx xxxsists of 1,000 shares of common stock, par value $.01 per share. Immediately prior to the Closing, all of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 shares of Common Stock will be issued and outstanding all of which will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof, 525,492 shares of Series A Preferred Stock will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated July 22, 1994, by and among the Company and the Purchasers set forth on "Schedule I" thereto (the "1994 Stock Purchase Agreement"), 566,874 shares of Series A-I Preferred will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated September 22, 1995, by and among the Company and the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other there are 12,180,735 shares of capital stock the Company's Common Stock outstanding and no shares of the Company or Bartxxx xxxe been Company's preferred stock issued or reserved for issuanceand outstanding (however, except 385,000 it is planned that Series B Preferred Stock will be authorized and issued). The 12,180,735 shares of Common Stock reserved for issuance issued and outstanding have been issued in the event options granted pursuant to following manners: Initial Founders 4,396,875 Capital Raise ~ Net Cash Proceeds of $5,727,715 5,015,110 Services and Non-Cash Issuances 318,750 Merger with Never Miss A Call 2,450,000 Total Shares Issued and Outstanding 12,180,735 The following description represents additional capital stock issuances since the 1989 and 1990-1991 Stock Option Plans effective time periods of the Exchange Act Reports: Financial Related Services -------------------------- On November 23, 2001, the Company are exercisedentered into an agreement with an unrelated third party to provide certain financial related services. As compensation under this agreement, 730,000 the Company issued 144,513 shares of the Company's Common Stock and warrants to purchase an aggregate of 289,027 shares of the Company's Common Stock at $1.00 per share, exercisable for a period of five years. Such Common Stock and warrants will be held in escrow and shall vest ratably over six months. If the agreement is terminated, by either party, during the six month term then the unvested shares of Common Stock reserved and warrants will be returned to the Company and the Company shall have no further obligation for issuance any equity based incentive. The shares of the Company's Common Stock issued in connection with this transaction and the shares of the Company's Common Stock underlying the warrants are restricted and have piggyback registration rights when and if the Company files a registration statement during the one year period commencing on May 22, 2002 and terminating on May 22, 2003. Unit Offering ------------- During the period from November 2001 through January 2002, the Company raised approximately $175,000 through a private unit offering ("Unit Offering") to accredited investors who are friends and family of the Company. During the above referenced time period the Company sold seven (7) units. Each unit was priced at $25,000, which consisted of a promissory note for $25,000 and warrants to purchase 50,000 shares of restricted, par value $0.0001 Common Stock subject to the discretion of management to accept fractional units. The promissory note bears interest, on a monthly basis, at a rate of prime plus 2.0%, (which ranges from 6.75% to 7.0%) with a term of one year. The promissory note (including accrued interest) may, at the option of the note holder, be re-paid in cash or converted at or after the scheduled maturity date into restricted shares of the Company's Common Stock at a conversion rate of $0.25 per share. The warrants are exercisable at a price of $0.50 per share and are immediately exercisable and expire two years after the date of grant. The warrants bear a call provision by the Company when and if the bid price of the stock is at $1.00 or more for any ten (10) day consecutive trading period, then the Company may demand the warrant holder to exercise 100% of the warrants issued and outstanding under the unit offering and the warrant holder has ten (10) business days to exercise said warrants. If warrants are not exercised within said ten (10) business days then 100% of the warrants issued and outstanding under the unit offering immediately expire and are deemed to be forfeited by the warrant holder. Investor Warrants ----------------- On December 7, 2001, the Company sold warrants to purchase an aggregate of 150,000 shares of the Company's Common Stock at an exercise price of $.50 per share to an existing warrant holder for $5,000. The warrants are subject to a six (6) month holding period and expire 18 months after the date of grant. Common Stock Equivalents ------------------------ The following represents a description of the common stock equivalents, issued and outstanding, inclusive of the common stock equivalents as described above which were not previously disclosed in the event Exchange Act Reports based on the dates of when such transactions were consummated: Common Stock Purchase Warrants: During the period from July 2000 through June 2001, the Company issued 1,1,85,625 warrants to purchase shares of the conversionCompany's Common Stock at $0.57 per share, exercisable for a period of three years in connection with a private placement offering. During July 2001, the Company issued 150,000 warrants to purchase shares of the Company's Common Stock at $1.02 per share, which vest ratably over twelve months and are exercisable for a period of five years in connection with an agreement for certain investor relation services. The shares of the Company's Common Stock underlying the warrants have piggyback registration rights when and if the Company files a registration statement. On December 7, 2001, the Company sold an additional 150,000 warrants to this warrant holder for $5,000. The additional warrants are subject to a six-month holding period and expire 18 months after the date of grant. These additional 150,000 warrant do not have registration rights. During the period from November 2001 through January 2002, the Company issued 350,000 warrants to purchase shares of the Company's Common Stock at $0.50 per share, immediately exercisable and expire after two years from the date of grant in connection with the Unit Offering. The warrants contain a call provision by the Company when and if the bid price of the stock is at $1.00 or more for any ten (10) day consecutive trading period, then the Company may demand the warrant holder to exercise 100% of the warrants issued and outstanding under the unit offering and the warrant holder has ten (10) business days to exercise said warrants. If warrants are not exercised within said ten (10) business days then 100% of the warrants issued and outstanding under the unit offering immediately expire and are deemed to be forfeited by the warrant holder. During November 2001, the Company issued warrants to purchase 289,027 shares of the Company's Common Stock at $1.00 per share, which vest ratably over six months and are exercisable for a period of five years in connection with an agreement for certain financial related services. If the agreement is terminated by either party during the six-month term, then the unvested warrants will be returned to the Company and the Company shall have no further obligation for any equity based incentive. The shares of the Company's Common Stock underlying the warrants have piggyback registration rights when and if the Company files a registration statement during the one-year period commencing on May 22, 2002 and terminating on May 22, 2003.

Authorized Capital Stock. The As of the date hereof, the authorized capital stock of (a) the Company consists of (ia) 3,000,000 35,000,000 shares of preferred stockCommon Stock, no $.001 par value per share (the "Preferred Stock")share, of which 730,000 shares have been designated "Series A Preferred" and 850,000 shares designated "Series A-I Preferred" and (iib) 5,000,000 shares of common Preferred Stock, $.001 par value per share, 27,437 shares of which are designated as Series A Convertible Preferred Stock. As of May 30, 2000, there were 17,234,325 shares of Common Stock outstanding and no shares of Preferred Stock outstanding. All of the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. The Company has reserved for issuance upon conversion of the Series A Preferred Stock 3,446,740 shares of Common Stock. As of May 17, 2000, the Company had reserved and available for stock options to be granted and issued under its 1997 Equity Incentive Plan (the "1997 EQUITY INCENTIVE PLAN") and its 1999 Equity Incentive Plan (the "1999 EQUITY INCENTIVE PLAN" and together with the 1997 Equity Incentive Plan, the "COMPANY EQUITY INCENTIVE PLANS"), 1,661,219 (500,000 of which are subject to stockholder approval) and 275,517 shares of Common Stock, respectively, and 235,563 shares of Common Stock under its 1997 Employee Stock Purchase Plan. As of May 17, 2000, the Company had reserved and available for stock options to be granted and issued under its 1997 Non-Employee Director Stock Option Plan (the "DIRECTOR OPTION PLAN") 208,653 (100,000 of which are subject to stockholder approval) shares of Common Stock. The Company has reserved for issuance 165,736 shares of Common Stock issuable upon the exercise of the warrants set forth on Schedule 3.2 hereto (the "EXISTING WARRANTS") and 850,000 shares of Common Stock issuable upon the exercise of the Vulcan Warrant (the "WARRANT SHARES"). Other than as set forth on Schedule 3.2 hereof, as of May 17, 2000, there were not outstanding or existing any options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of its capital stock or any securities exercisable for or convertible into shares of its capital stock, except for (a) options to purchase an aggregate of 3,288,845, 1,686,356 and 141,347 shares of Common Stock outstanding under the 1997 Equity Incentive Plan, the 1999 Equity Incentive Plan and the Director Option Plan, respectively, and (b) Bartxxx xxxsists an aggregate of 1,000 165,736 shares of common stock, par value $.01 per share. Immediately prior to issuable upon the Closing, all exercise of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 shares of Common Stock will be issued and outstanding all of which will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof, 525,492 shares of Series A Preferred Stock will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated July 22, 1994, by and among the Company and the Purchasers set forth on "Schedule I" thereto (the "1994 Stock Purchase Agreement"), 566,874 shares of Series A-I Preferred will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated September 22, 1995, by and among the Company and the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of capital stock of the Company or Bartxxx xxxe been issued or reserved for issuance, except 385,000 shares of Common Stock reserved for issuance in the event options granted pursuant to the 1989 and 1990-1991 Stock Option Plans of the Company are exercised, 730,000 shares of Common Stock reserved for issuance in the event of the conversionExisting Warrants.

Authorized Capital Stock. The As of the date hereof, the authorized capital stock of (a) the Company consists of (ia) 3,000,000 35,000,000 shares of preferred stockCommon Stock, no $.001 par value per share (the "Preferred Stock")share, of which 730,000 shares have been designated "Series A Preferred" and 850,000 shares designated "Series A-I Preferred" and (iib) 5,000,000 shares of common Preferred Stock, $.001 par value per share, 27,437 shares of which are designated as Series A Convertible Preferred Stock. As of May 30, 2000, there were 17,234,325 shares of Common Stock outstanding and no shares of Preferred Stock outstanding. All of the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. The Company has reserved for issuance upon conversion of the Series A Preferred Stock 3,446,740 shares of Common Stock. As of May 17, 2000, the Company had reserved and available for stock options to be granted and issued under its 1997 Equity Incentive Plan (the "1997 EQUITY INCENTIVE PLAN") and its 1999 Equity Incentive Plan (the "1999 EQUITY INCENTIVE PLAN" and together with the 1997 Equity Incentive Plan, the "COMPANY EQUITY INCENTIVE PLANS"), 1,661,219 (500,000 of which are subject to stockholder approval) and 275,517 shares of Common Stock, respectively, and 235,563 shares of Common Stock under its 1997 Employee Stock Purchase Plan. As of May 17, 2000, the Company had reserved and available for stock options to be granted and issued under its 1997 Non-Employee Director Stock Option Plan (the "DIRECTOR OPTION PLAN") 208,653 (100,000 of which are subject to stockholder approval) shares of Common Stock. The Company has reserved for issuance 165,736 shares of Common Stock issuable upon the exercise of the warrants set forth on SCHEDULE 3.2 hereto (the "EXISTING WARRANTS") and 850,000 shares of Common Stock issuable upon the exercise of the Vulcan Warrant (the "WARRANT SHARES"). Other than as set forth on SCHEDULE 3.2 hereof, as of May 17, 2000, there were not outstanding or existing any options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of its capital stock or any securities exercisable for or convertible into shares of its capital stock, except for (a) options to purchase an aggregate of 3,288,845, 1,686,356 and 141,347 shares of Common Stock outstanding under the 1997 Equity Incentive Plan, the 1999 Equity Incentive Plan and the Director Option Plan, respectively, and (b) Bartxxx xxxsists an aggregate of 1,000 165,736 shares of common stock, par value $.01 per share. Immediately prior to issuable upon the Closing, all exercise of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 shares of Common Stock will be issued and outstanding all of which will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof, 525,492 shares of Series A Preferred Stock will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated July 22, 1994, by and among the Company and the Purchasers set forth on "Schedule I" thereto (the "1994 Stock Purchase Agreement"), 566,874 shares of Series A-I Preferred will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated September 22, 1995, by and among the Company and the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of capital stock of the Company or Bartxxx xxxe been issued or reserved for issuance, except 385,000 shares of Common Stock reserved for issuance in the event options granted pursuant to the 1989 and 1990-1991 Stock Option Plans of the Company are exercised, 730,000 shares of Common Stock reserved for issuance in the event of the conversionExisting Warrants.

Authorized Capital Stock. The authorized capital stock of (a) the Company consists of (i) 3,000,000 1,562,500 shares of preferred stockClass A Convertible Preferred Stock, no $.001 par value per share (the "Class A Preferred Stock"), of which 730,000 shares have been designated "Series A Preferred" and 850,000 shares designated "Series A-I Preferred" and (ii) 5,000,000 2,151,420 shares of common stock Class B Convertible Preferred Stock, $.001 par value (the "Common Class B Preferred Stock"), (iii) 3,188,889 shares of Class C Convertible Preferred Stock, $.001 par value (the "Class C Preferred Stock"), (iv) 2,045,785 shares of Class D Convertible Preferred Stock, $.001 par value (the "Class D Preferred Stock"), (v) 1,024,351 shares of Class E Convertible Preferred Stock, $.001 par value (the "Class E Preferred Stock") and (bvi) Bartxxx xxxsists of 1,000 17,500,000 shares of common stock, par value $.01 per shareCommon Stock. Immediately prior to the Closing, all of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 4,434,583 shares of Common Stock, 1,537,500 shares of Class A Preferred Stock, 2,151,420 shares of Class B Preferred Stock, 3,188,889 shares of Class C Preferred Stock will be issued and outstanding all 2,045,785 shares of which Class D Preferred Stock will be validly issued and outstanding, fully paid and nonassessable with no personal liability attaching to the ownership thereof, 525,492 thereof and no shares of Series A Class E Preferred Stock will be issued have been issued. The stockholders of record and outstanding pursuant holders of subscriptions, warrants, options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the Convertible Stock Purchase AgreementCompany, dated July 22, 1994, by and among the Company and the Purchasers 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 "in the attached Schedule I" thereto (III. The Company has attached a copy of the "1994 Stock Purchase Agreement")post-closing capitalization schedule as a part of Schedule III. The designations, 566,874 shares powers, preferences, rights, qualifications, limitations and restrictions in respect of Series A-I Preferred will be issued each class and outstanding pursuant to the Convertible Stock Purchase Agreement, dated September 22, 1995, by and among the Company and the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares series of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of authorized capital stock of the Company are as set forth in the Charter, a copy of which is attached as Exhibit B, 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 attached Schedule III, (i) no person owns of record or Bartxxx xxxe been issued or reserved for issuance, except 385,000 shares is known to the Company to own beneficially any share of Common Stock, Class A Preferred Stock, Class B Preferred Stock, Class C Preferred Stock reserved for issuance in the event options granted pursuant or Class D Preferred Stock, (ii) no subscription, warrant, option, convertible security, or other right (contingent or other) to the 1989 and 1990-1991 Stock Option Plans purchase or otherwise acquire equity securities of the Company are exercisedis authorized or outstanding, 730,000 shares and (iii) 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 Common Stock reserved any of its equity securities any evidence of indebtedness or asset. Except as provided for issuance in the event Charter or as set forth in the attached Schedule II, the 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. Except as set forth in Schedule II, to the best of the conversionCompany'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 Company (whether or not the Company is a party thereto). All of the outstanding securities of the Company were issued in compliance with all applicable Federal and state securities laws.

Authorized Capital Stock. (a) The authorized capital stock of (a) the Company consists of (i) 3,000,000 70,000,000 shares of preferred stock, no $.01 par value per share (the "“Preferred Stock"”), of which 730,000 (A) 1,000,000 shares have been designated "Series A Preferred" Convertible Preferred Stock (the “Series A Convertible Preferred Stock),” of which (B) 10,000,000 shares have been designated Series B Convertible Preferred Stock (the “Series B Convertible Preferred Stock”), of which (C) 52,000,000 shares have been designated Series C Convertible Preferred Stock and 850,000 of which (D) 7,000,000 shares have been designated "Series A-I Preferred" C-1 Convertible Preferred Stock, and (ii) 5,000,000 100,000,000 shares of common stock (the "Common Stock") and (b) Bartxxx xxxsists . As of 1,000 the date hereof, 927,550 shares of common stockSeries A Convertible Preferred Stock are issued and outstanding, par value $.01 per share. Immediately prior to the Closing8,562,003 shares of Series B Convertible Preferred Stock are issued and outstanding, all no shares of the capital stock Series C Preferred Stock are issued and outstanding, no shares of Bartxxx xxxch is Series C-1 Preferred Stock are issued and outstanding will be owned by the Company, 1,983,450 and 4,844,781 shares of Common Stock will be are issued and outstanding. All of the issued and outstanding all shares of which Preferred Stock and Common Stock are owned of record and, to the best knowledge of the Company, beneficially as set forth on Schedule 2.04(a). All issued and outstanding shares of Common Stock and Preferred Stock of the Company are duly authorized and validly issued, and are fully paid and nonassessable. (b) The Preferred Shares have been duly authorized and, when issued, sold and delivered in accordance with this Agreement for the consideration expressed herein, will be validly issued and outstandingissued, fully paid and nonassessable with no personal liability attaching to the ownership thereof and will be free and clear of all liens, charges and encumbrances of any nature whatsoever. The Preferred Conversion Shares have been duly reserved for issuance upon conversion of the Note, exercise of the Option, and the Common Conversion Shares have been duly reserved for issuance upon conversion of the Series C Preferred Stock, and, when so issued in accordance with the terms thereof, 525,492 shares of Series A Preferred Stock will be issued duly authorized, validly issued, fully paid and outstanding pursuant nonassessable shares with no personal liability attaching to the Convertible Stock Purchase Agreementownership thereof and will be free and clear of all liens, dated July 22charges and encumbrances of any nature whatsoever. Except as set forth in Schedule 2.04(b), 1994neither the issuance, by sale or delivery of the Preferred Shares nor the issuance or delivery of the Conversion Shares is subject to any preemptive right of stockholders of the Company, or to any right of first refusal or other right in favor of any Person. (c) The designations, powers, preferences, rights, qualifications, limitations and among restrictions in respect of each class and series of authorized capital stock of the Company is as set forth in the Certificate of Incorporation, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are in accordance with all applicable laws and are legal, valid and binding obligations of the Purchasers Company. Except as set forth in Schedule 2.04(c), (i) no subscription, warrant, option, convertible security or other right (contingent or other) to purchase or otherwise acquire from the Company (or, to the best of the Company’s knowledge, from any other Person or entity) any equity securities of the Company is authorized or outstanding, and (ii) there are no additional commitments 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 assets. Except as provided for in the Certificate of Incorporation, the Company has no obligation 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. (d) Except as set forth on "Schedule I" thereto (the "1994 Stock Purchase Agreement"2.04(d), 566,874 shares of Series A-I Preferred will be issued and outstanding pursuant to the Convertible Stock Purchase Agreementbest of the Company’s knowledge, dated September 22there are no voting trusts or agreements, 1995stockholders’ agreements, by and among pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights (statutory or contractual) or proxies relating to any securities of the Company and (whether or not the purchasers Company is a party thereto). Except as set forth in Schedule 2.04(d), there are no restrictions on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares transfer of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of capital stock of the Company or Bartxxx xxxe been issued or reserved for issuanceCompany, except 385,000 shares of Common Stock reserved for issuance in the event options granted other than those imposed by relevant Federal and state securities laws and pursuant to the 1989 Other Transaction Documents. Except as set forth on Schedule 2.04(d), neither the issuance of the Preferred Shares nor the Conversion Shares will result in any adjustment under the antidilution or exercise rights of any holders of any outstanding shares of capital stock, options, warrants, or other rights to acquire any security of the Company. The offer and 1990-1991 Stock Option Plans sale of all outstanding shares of capital stock and other securities of the Company are exercisedcomplied, 730,000 shares of Common Stock reserved for issuance in the event of the conversionall material respects, with Federal and applicable state securities laws.

Authorized Capital Stock. The authorized capital stock of (a) the Company consists of (i) 3,000,000 60,000,000 shares of preferred stockPreferred Stock, no $0.001 par value per share (the "Preferred Stock"), of which 730,000 7,330,000 shares have been designated "Series A Preferred" Convertible Preferred Stock, 8,000,000 shares have been designated Series B Convertible Preferred Stock and 850,000 16,666,667 shares have been designated "Series A-I Preferred" C Convertible Preferred Stock, and (ii) 5,000,000 100,000,000 shares of common stock (the "Common Stock") and (b) Bartxxx xxxsists of 1,000 shares of common stock, $0.001 par value $.01 per sharevalue. Immediately prior to the First Closing, all of the capital stock of Bartxxx xxxch is issued and outstanding will be owned by the Company, 1,983,450 (A) 10,392,000 shares of Common Stock will be issued and outstanding all of which will be validly issued and outstanding, fully paid and nonassessable nonassessable, with no personal liability attaching to the ownership thereof, 525,492 (B) 7,330,000 shares of Series A Convertible Preferred Stock will be validly issued and outstanding outstanding, fully paid and nonassessable, with no personal liability attached to the ownership thereof, and 8,000,000 shares of Series B Convertible Preferred Stock will be validly issued and outstanding, fully paid and non-assessable, with no personal liability attached to the ownership thereof. An aggregate of 31,996,667 shares of Common Stock has been reserved for issuance upon conversion of the Series A Convertible Preferred Stock, the Series B Convertible Preferred Stock and the Series C Convertible Preferred Stock. An aggregate of 8,000,000 shares of Common Stock (the "Reserved Employee Shares") has been reserved for issuance pursuant to the Convertible Company's Stock Purchase AgreementOption Plan, dated July 22of which options to purchase 4,210,433 shares have been granted to date. The designations, 1994powers, by preferences, rights, qualifications, limitation and among the Company restrictions in respect of each class and the Purchasers set forth on "Schedule I" thereto (the "1994 Stock Purchase Agreement"), 566,874 shares series of Series A-I Preferred will be issued and outstanding pursuant to the Convertible Stock Purchase Agreement, dated September 22, 1995, by and among the Company and the purchasers set forth on "Schedule I" thereto (the "1995 Stock Purchase Agreement") and 128,775 shares of Series A-I Preferred will be issued and outstanding pursuant to a Convertible Preferred Stock Purchase Agreement, dated November 16, 1995, between the Company and Northstar American Corporation. No other shares of authorized capital stock of the Company are as set forth in the Charter, a copy of which is attached as Exhibit B, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws. The equity interests in each of the Company's subsidiaries is set forth in Section 2.1 of the Disclosure Schedule, which interests are validly issued and outstanding and free of all liens, charges, restrictions, claims and encumbrances. Except as set forth in the attached Disclosure Schedule, (i) no person owns of record or Bartxxx xxxe been issued or reserved for issuance, except 385,000 shares is known to the Company to own beneficially any share of Common Stock reserved for issuance in or Preferred Stock or any equity securities of any of the event options granted pursuant Company's subsidiaries, (ii) no subscription, warrant, option, convertible security, or other right (contingent or other) to the 1989 and 1990-1991 Stock Option Plans purchase or otherwise acquire equity securities of the Company are exercisedor any of its subsidiaries is authorized or outstanding and (iii) there is no commitment by the Company or any of its subsidiaries to issue shares, 730,000 shares subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of Common Stock reserved any of its equity securities any evidence of indebtedness or asset. Except as provided for issuance in the event Charter or as set forth in the attached Disclosure Schedule, neither the Company nor any of its subsidiaries has any obligation (contingent or other) 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. Except as set forth in the Disclosure Schedule, neither the Company or any of its subsidiaries nor, to the Company's knowledge, without having investigated such matter, any other person is party to 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 conversionCompany or any of its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto), and all such rights under any such agreement have been waived or exercised by all such persons with respect to the transactions contemplated hereby. All of the outstanding securities of the Company and its subsidiaries were issued in compliance with all applicable Federal, foreign and state securities laws.