Common use of Capitalization and Indebtedness Clause in Contracts

Capitalization and Indebtedness. (a) As of the date hereof, the authorized capital stock of the Company consists of 75,000,000 shares of Common Stock, of which as of the date hereof, 15,277,371 shares are issued and outstanding, and 15,000,000 shares of preferred stock (the "Preferred Stock") of the Company, of which as of the date hereof no shares are issued or outstanding. All of the outstanding shares have been validly issued and are fully paid and nonassessable. No shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens suffered or permitted by the Company. Except as disclosed in the SEC Filings, as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of Capital Stock of the Company or any of its Subsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except as provided in this Agreement). There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Common Stock as described in this Agreement. The Company has furnished to the Underwriter true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.

Capitalization and Indebtedness. (a) As of the date hereof, the authorized capital stock of the Company consists of 75,000,000 shares of Common Stock, of which as of the date hereof, 15,277,371 38,313,803 shares are issued and outstanding, and 15,000,000 5,000,000 shares of preferred stock (the "Preferred Stock") of the Company, of which as of the date hereof no shares are issued or outstanding. All of the outstanding shares have been validly issued and are fully paid and nonassessable. No Except as disclosed in the SEC Filings, no shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens suffered or permitted by the Company. Except as disclosed in the SEC Filings, as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of Capital Stock of the Company or any of its Subsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except as provided in this Agreement). There Except as disclosed in the SEC Filings, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Common Stock as described in this Agreement. The Company has furnished to the Underwriter true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.

Capitalization and Indebtedness. (a) As The description of the date hereofcapital stock of the Company, the number of shares of authorized capital stock of the Company consists and the number of 75,000,000 shares of Common Stock, of which as capital stock of the date hereof, 15,277,371 shares are Company that is issued and outstanding, outstanding are accurately and 15,000,000 shares of preferred stock (completely described in all material respects in the "Preferred Stock") of Registration Statement and the Company, of which Prospectus or as of the date hereof no shares are issued or outstandingset forth in Schedule 4.2(a). All of the outstanding shares have been validly issued and are fully paid and nonassessable. No Except as disclosed in the Registration Statement and the Prospectus or as set forth in Schedule 4.2(a), no shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens Liens suffered or permitted by the Company. Except as disclosed in the SEC Filings, Registration Statement and the Prospectus or as of the date hereofset forth in Schedule 4.2(a), (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of Capital Stock of the Company or any of its Subsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except as provided in this Agreement). There Except as disclosed in the Registration Statement and the Prospectus or as set forth in Schedule 4.2(a), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Common Stock as described in this Agreement. The Company has furnished to the Underwriter Company's Registration Statement contains true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase OptionStock, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter Investor good and valid title to the Common Stock, free and clear of any liens, other than liens created by the UnderwriterLiens, and such Common Stock will be duly authorized, fully paid and nonassessable.

Capitalization and Indebtedness. (a) As of the date hereof, the authorized capital stock of the Company consists of 75,000,000 100,000,000 shares of Common Stock, of which as of the date hereof, 15,277,371 shares are issued and outstanding, and 15,000,000 shares of preferred stock (the "Preferred Stock") of the Companypar value $.001 per share, of which as of the date hereof no May 9, 2001, 34,388,445 shares are issued or and outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company. Except as contemplated by this Warrant or as previously disclosed to the Holder in writing (including in the SEC FilingsLoan and Security Agreement, which was reviewed by the Holder), as of the date hereof, (i) there are no outstanding optionsOptions, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to issue additional shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries or Options, (ii) there are no outstanding debt securitieswarrants, notesscrip, credit agreementsrights to subscribe to, calls or commitments of any character whatsoever relating to, or other agreementssecurities or rights convertible into, documents or instruments evidencing indebtedness any shares of capital stock of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound subsidiaries, and (iiiii) there are no agreements or arrangements under which the Company or any of its Subsidiaries subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except as provided in this Agreement)Act. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Common Stock as described in this Agreement. The Company has furnished to the Underwriter true and correct copies of the Company's Certificate of IncorporationWarrant or, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this AgreementWarrant, the Company will transfer to the Underwriter good and valid title to the Common Stockissuance of Warrant Shares, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.except for anti-dilution provisions which have been validly waived on or

Capitalization and Indebtedness. (a) As of the date hereofhereof and immediately prior to the issuance of the Series D Preferred Shares and Warrants hereunder, the authorized capital stock of the Company consists of 75,000,000 20,000,000 shares of Common Stock, of which as of the date hereof, 15,277,371 5,847,519 shares are issued and outstanding, 2,000,000 shares of Class B Common Stock (the "Class B Common Stock"), of which as of the date hereof, no shares are issued and outstanding, 2,400,000 shares of Series A Convertible Preferred Stock ("Series A Preferred Stock"), of which as of the date hereof, no shares are issued and outstanding, 1,650,000 shares of Series B Convertible Non-Voting Preferred Stock ("Series B Preferred Stock"), of which as of the date hereof, no shares are issued and outstanding, and 15,000,000 400,000 shares of preferred stock Series C Junior Participating Preferred Stock ("Series C Preferred Stock" and collectively with the Series A Preferred Stock and Series B Preferred Stock called the "Preferred StockCompany Preferred") of the Company), of which as of the date hereof no shares are issued or and outstanding. All of the outstanding shares have been validly issued and are fully paid and nonassessable. No shares of Common Stock Stock, Class B Common Stock, Company Preferred or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company. Except as disclosed in the SEC Filingsset forth on Schedule 3(c), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to issue additional shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries subsidiaries or by which the Company or any of its Subsidiaries subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its Subsidiaries subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act (except as provided in this the Registration Rights Agreement and the ClickShip Registration Rights Agreement). There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Common Stock Securities or the ClickShip Warrants or ClickShip Warrant Shares as described in this Agreement. The Company has furnished to the Underwriter Buyer true and correct copies of each of the Company's Certificate and ClickShip's articles of Incorporationincorporation, as amended and as in effect on the date hereof (the "Certificate of IncorporationCERTIFICATE OF INCORPORATION"), and each of the Company's and ClickShip's By-laws, as in effect on the date hereof (the "ByBY-lawsLAWS"), and the terms of all securities convertible into or exercisable for Common Stock, Class B Common Stock or Preferred Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.

Capitalization and Indebtedness. (a) As of the date hereof, the authorized capital stock of the Company consists of 75,000,000 100,000,000 shares of Common Stock, of which as of the date hereof, 15,277,371 shares are issued and outstanding, and 15,000,000 shares of preferred stock (the "Preferred Stock") of the Companypar value $.001 -18- 19 per share, of which as of the date hereof no May 9, 2001, 34,388,445 shares are issued or and outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company. Except as contemplated by this Warrant or as previously disclosed to the Holder in writing (including in the SEC FilingsLoan and Security Agreement), as of the date hereof, (i) there are no outstanding optionsOptions, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to issue additional shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries or Options, (ii) there are no outstanding debt securitieswarrants, notesscrip, credit agreementsrights to subscribe to, calls or commitments of any character whatsoever relating to, or other agreementssecurities or rights convertible into, documents or instruments evidencing indebtedness any shares of capital stock of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound subsidiaries, and (iiiii) there are no agreements or arrangements under which the Company or any of its Subsidiaries subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except as provided in this Agreement)Act. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any this Warrant or, upon exercise of this Warrant, the Common Stock as described in this Agreement. The Company has furnished issuance of Warrant Shares, except for anti-dilution provisions which have been validly waived on or prior to the Underwriter true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights respect of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable this Warrant and, upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this AgreementWarrant, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear issuance of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessableWarrant Shares.

Capitalization and Indebtedness. (a) As of the date hereofhereof and immediately prior to the issuance of the Senior Convertible Notes hereunder, the authorized capital stock of the Company consists of 75,000,000 20,000,000 shares of Common Stock, of which as of the date hereof, 15,277,371 5,864,352 shares are issued and outstanding, and 15,000,000 2,000,000 shares of preferred stock Class B Common Stock (the "Class B Common Stock"), of which as of the date hereof, no shares are issued and outstanding, 2,400,000 shares of Series A Convertible Preferred Stock ("Series A Preferred Stock"), of which as of the date hereof, no shares are issued and outstanding, 1,650,000 shares of Series B Convertible Non-Voting Preferred Stock ("Series B Preferred Stock"), of which as of the date hereof, no shares are issued and outstanding, 400,000 shares of Series C Junior Participating Preferred Stock ("Series C Preferred Stock") of the Company, of which as of the date hereof no shares are issued or outstandingand outstanding and 200,000 shares of Series D Convertible Preferred Stock ("Series D Preferred Stock"), of which as of the date hereof, 200,000 shares are issued and outstanding (and collectively with the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock called the "Company Preferred"). All of the outstanding shares have been validly issued and are fully paid and nonassessable. No shares of Common Stock, Class B Common Stock or Company Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company. Except as disclosed in the SEC Filingsset forth on Schedule 3(c), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to issue additional shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries subsidiaries or by which the Company or any of its Subsidiaries subsidiaries is or may become bound bound, (iii) there are no amounts outstanding under, and there will be no amounts due upon termination of, that certain Credit Agreement between Bank of America, N.A. and the Company (the "Revolving Credit Facility"), dated as of July 28, 2000, (iv) there are no financing statements filed in connection with the Company or any of its subsidiaries and (iiiv) there are no agreements or arrangements under which the Company or any of its Subsidiaries subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act (except as provided in this the Registration Rights Agreement). There Except as set forth on Schedule 3(c), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Common Stock Securities as described in this Agreement. The Company has furnished to the Underwriter Buyer true and correct copies of the Company's Certificate articles of Incorporationincorporation, as amended and as in effect on the date hereof (the "Certificate of IncorporationCERTIFICATE OF INCORPORATION"), and the Company's By-laws, as in effect on the date hereof (the "ByBY-lawsLAWS"), and the terms of all securities convertible into or exercisable for Common Stock, Class B Common Stock or Company Preferred Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.

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

Capitalization and Indebtedness. (a) As of the date hereofhereof and immediately prior to the issuance of the Paradise Shares and the Paradise Warrants hereunder, the authorized capital stock of the Company consists of 75,000,000 shares of Common Stock, of which as of the date hereof, 15,277,371 9,658,841 shares are issued and outstanding, and 15,000,000 5,000,000 shares of preferred stock Preferred Stock, par value $.01 per share (the "Preferred Stock") of the Company), of which as of the date hereof no shares are issued or outstanding. All of the outstanding shares have been validly issued and are fully paid and nonassessable. No shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company. Except as disclosed in the SEC Filingsset forth on Schedule 3(c), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to issue additional shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries subsidiaries or by which the Company or any of its Subsidiaries subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its Subsidiaries subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act (except as provided in this the Registration Rights Agreement). There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Common Stock Securities as described in this Agreement. The Company has furnished to the Underwriter Buyer true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.

Capitalization and Indebtedness. (a) As of the date hereof, the authorized capital stock of the Company consists of 75,000,000 60,000,000 shares of Common Stock, of which as of the date hereof, 15,277,371 21,335,061 shares are issued and outstanding, and 15,000,000 2,000,000 shares of preferred stock (the "Preferred Stock") of the Company, of which as of the date hereof hereof, no shares are issued or outstanding. All of the outstanding shares have been validly issued and are fully paid and nonassessable. No Further, the Company's Float as of the date hereof consists of 7,441,378 shares of Common Stock. Except as set forth in Schedule 5.2, no shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens suffered or permitted by the Company. Except as disclosed in the SEC Filings, as As of the date hereof, except as set forth in Schedule 5.2, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of 13 FUEL(TM)PATENTS PENDING RAMIUS SECURITIES, LLC Capital Stock of the Company or any of its Subsidiaries, other than rights created pursuant to this Agreement or pursuant to the Company's stock option plan and employee stock purchase plan, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except as provided in this Agreement). There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Common Stock as described in pursuant to this Agreement. The Company has furnished to the Underwriter true and correct copies of the Company's Certificate articles of Incorporationincorporation, as amended and as in effect on the date hereof (the "Certificate Articles of Incorporation"), and the Company's By-lawsbylaws, as in effect on the date hereof (the "By-lawsBylaws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.

Capitalization and Indebtedness. (a) As of the date hereof, the authorized capital stock of the Company Corporation consists of 75,000,000 (i) 100,000,000 shares of Common Stock, par value $0.001 per share, of which which, as of the date hereof, 15,277,371 8,657,913 shares are issued and outstanding, plus 29,575 additional shares authorized for issuance, but not yet issued and 15,000,000 outstanding, 1,853,767 shares of preferred Common Stock are issuable upon the exercise of outstanding stock options and 1,179,413 shares of Common Stock are issuable upon the exercise of outstanding warrants and (the "ii) 10,000,000 shares of Preferred Stock") of the Company, par value $0.001 per share, of which which, as of the date hereof no shares hereof, none of which are issued or and outstanding. All of the outstanding shares of Common Stock have been validly issued and are fully paid and nonassessable. No Except as set forth in the Financing Agreement, no shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the CompanyCorporation. Except as disclosed set forth in the SEC FilingsFinancing Agreement and as contemplated by this Warrant, as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock capital stock of the Company Corporation or any of its Subsidiariessubsidiaries, or contracts, commitments, understandings or arrangements by which the Company Corporation or any of its Subsidiaries subsidiaries is or may become bound to issue additional shares of Capital Stock capital stock of the Company Corporation or any of its Subsidiariessubsidiaries or options, (ii) there are no outstanding debt securitieswarrants, notesscrip, credit agreementsrights to subscribe to, calls or commitments of any character whatsoever relating to, or other agreementssecurities or rights convertible into, documents or instruments evidencing indebtedness any shares of capital stock of the Company Corporation or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound subsidiaries, and (iiiii) there are no agreements or arrangements under which the Company Corporation or any of its Subsidiaries subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except as provided in this the Registration Rights Agreement). There Except as set forth in the Financing Agreement, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any this Warrant or, upon exercise of this Warrant, the Common Stock as described in this Agreement. The Company has furnished to the Underwriter true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessableWarrant Shares.

Capitalization and Indebtedness. (a) As of the date hereof------------------------------- hereof and immediately prior to the issuance of the Common Shares and Warrants hereunder, the authorized capital stock of the Company consists of 75,000,000 100,000,000 shares of Common Stock, of which as of the date hereof, 15,277,371 21,260,792 shares are issued and outstanding, and 15,000,000 10,000,000 shares of preferred stock (the "Preferred Stock") of the Company, of which as of the date hereof no 2,000,000 shares are issued or outstanding. All of the outstanding shares have been validly issued and are fully paid and nonassessable. No Except as set forth on Schedule 3(c), no shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company. Except as disclosed in the SEC Filingsset forth on Schedule 3(c), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to issue additional shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries subsidiaries or by which the Company or any of its Subsidiaries subsidiaries is or may become bound and (iii) except for the Company's securities which are the subject of registration statements which have been filed with the SEC as of the Closing Date, there are no agreements or arrangements under which the Company or any of its Subsidiaries subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act (except as provided in this the Registration Rights Agreement). There Except as disclosed on Schedule 3(c), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Common Stock Securities as described in this Agreement. The Company has furnished to the Underwriter Buyer true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.

Capitalization and Indebtedness. (a) As of the date hereofhereof and immediately prior to the issuance of the Common Shares and Warrants hereunder, the authorized capital stock of the Company consists of 75,000,000 80,000,000 shares of Common Stock, of which as of the date hereofSeptember 5, 15,277,371 2000, 46,980,246 shares are issued and outstanding, and 15,000,000 10,000,000 shares of preferred stock (the "Preferred Stock") of the Company, of which as of the date hereof no shares are issued or outstanding. All of the outstanding shares have been validly issued and are fully paid and nonassessable. No shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company. Except as disclosed in set forth on Schedule 3(c) or the SEC FilingsDocuments, as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock capital stock of the Company or any of its the Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its the Subsidiaries is or may become bound to issue additional shares of Capital Stock capital stock of the Company or any of its the Subsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness of the Company or any of its the Subsidiaries or by which the Company or any of its the Subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its the Subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act (except as provided in this the Registration Rights Agreement). There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Common Stock Securities as described in this Agreement. The Company has furnished to the Underwriter Buyer true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.

Capitalization and Indebtedness. (a) As of the date hereof------------------------------- hereof and immediately prior to the issuance of the Securities hereunder, the authorized capital stock of the Company consists of 75,000,000 100,000,000 shares of Common Stock, of which as of the date hereof, 15,277,371 25,563,111 shares are issued and outstanding, and 15,000,000 10,000,000 shares of preferred stock (the "Preferred Stock") of the Company, of which as of the date hereof no shares are issued or outstanding. All Except as set forth on Schedule 3(c), all of the outstanding shares have been validly issued and are fully paid and nonassessable. No Except as set forth on Schedule 3(c), no shares of Common Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company. Except as disclosed in the SEC Filingsset forth on Schedule 3(c), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to issue additional shares of Capital Stock capital stock of the Company or any of its Subsidiariessubsidiaries, (ii) there are no outstanding debt securities, notes, credit agreements, or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries subsidiaries or by which the Company or any of its Subsidiaries subsidiaries is or may become bound and (iii) except for the Company's securities which are the subject of registration statements which have been filed with the SEC as of the Closing Date, there are no agreements or arrangements under which the Company or any of its Subsidiaries subsidiaries is obligated to register the sale of any of their securities under the Securities 1933 Act (except as provided in this the Series F Registration Rights Agreement and the Series G Registration Rights Agreement). There Except as disclosed on Schedule 3(c), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Common Stock Securities as described in this Agreement. The Company has furnished to the Underwriter Buyer true and correct copies of the Company's Certificate of Incorporation, as amended and as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's By-laws, as in effect on the date hereof (the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto. (b) Upon issuance of the Common Stock issuable upon exercise of the Purchase Option, and payment of the Purchase Option Exercise Price therefor, pursuant to a purchase and sale in accordance with the terms of this Agreement, the Company will transfer to the Underwriter good and valid title to the Common Stock, free and clear of any liens, other than liens created by the Underwriter, and such Common Stock will be duly authorized, fully paid and nonassessable.