Common use of Capitalization and Indebtedness Clause in Contracts

Capitalization and Indebtedness. As of the date hereof and immediately prior to the issuance of the Series D Preferred Shares and Warrants hereunder, the authorized capital stock of the Company consists of 20,000,000 shares of Common Stock, of which as of the date hereof, 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 400,000 shares of 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 "Company Preferred"), of which as of the date hereof no shares are issued and outstanding. All of the outstanding shares have been validly issued and are fully paid and nonassessable. No shares of Common 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 set forth on Schedule 3(c), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments 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 1933 Act (except 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 Securities or the ClickShip Warrants or ClickShip Warrant Shares as described in this Agreement. The Company has furnished to the Buyer true and correct copies of each of the Company's and ClickShip's articles of incorporation, as amended and as in effect on the date hereof (the "CERTIFICATE OF INCORPORATION"), and each of the Company's and ClickShip'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, Class B Common Stock or Preferred Stock and the material rights of the holders thereof in respect thereto.

Capitalization and Indebtedness. As of the date hereof and immediately prior to the issuance of the Series D Preferred Paradise Shares and the Paradise Warrants hereunder, the authorized capital stock of the Company consists of 20,000,000 75,000,000 shares of Common Stock, of which as of the date hereof, 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 9,658,841 shares are issued and outstanding, and 400,000 5,000,000 shares of Series C Junior Participating Preferred Stock ("Series C Preferred Stock" and collectively with the Series A Preferred Stock and Series B Preferred Stock called , par value $.01 per share (the "Company PreferredPreferred Stock"), of which as of the date hereof no shares are issued and or outstanding. All of the outstanding shares have been validly issued and are fully paid and nonassessable. No shares of Common Stock, Class B Common Stock, Company Preferred 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 set forth on Schedule 3(c), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments 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 1933 Act (except 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 Securities or the ClickShip Warrants or ClickShip Warrant Shares as described in this Agreement. The Company has furnished to the Buyer true and correct copies of each of the Company's and ClickShip's articles Certificate 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.

Capitalization and Indebtedness. As of the date hereof and immediately prior to the issuance of the Series D Preferred Common Shares and Warrants hereunder, the authorized capital stock of the Company consists of 20,000,000 80,000,000 shares of Common Stock, of which as of the date hereofSeptember 5, 5,847,519 shares are issued and outstanding2000, 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 46,980,246 shares are issued and outstanding, and 400,000 10,000,000 shares of 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 "Company Preferred"), of which as of the date hereof no shares are issued and or outstanding. All of the outstanding shares have been validly issued and are fully paid and nonassessable. No shares of Common Stock, Class B Common Stock, Company Preferred 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 set forth on Schedule 3(c)) or the SEC Documents, as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its subsidiariesthe Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries the Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its subsidiariesthe 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 the Subsidiaries or by which the Company or any of its subsidiaries the Subsidiaries is or may become bound and (iii) there are no agreements or arrangements under which the Company or any of its subsidiaries the Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except 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 Securities or the ClickShip Warrants or ClickShip Warrant Shares as described in this Agreement. The Company has furnished to the Buyer true and correct copies of each of the Company's and ClickShip's articles Certificate 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.

Capitalization and Indebtedness. As of the date hereof and immediately prior to the issuance of the Series D Preferred Shares and Warrants hereunderhereof, the authorized capital stock of the Company consists of 20,000,000 100,000,000 shares of Common Stock, of which as of the date hereof, 5,847,519 shares are issued and outstanding, 2,000,000 shares of Class B Common Stock (the "Class B Common Stock")par value $.001 per share, of which as of the date hereofMay 9, no shares are issued and outstanding2001, 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 400,000 shares of 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 "Company Preferred"), of which as of the date hereof no 34,388,445 shares are issued 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, 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 set forth on Schedule 3(ccontemplated by this Warrant or as previously disclosed to the Holder in writing (including in the Loan and Security Agreement, which was reviewed by the Holder), as of the date hereof, (i) there are no outstanding optionsOptions, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its 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 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 is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement and the ClickShip Registration Rights Agreement)Securities Act. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any this Warrant or, upon exercise of this Warrant, the Securities or the ClickShip Warrants or ClickShip issuance of Warrant Shares as described in this Agreement. The Company has furnished to the Buyer true and correct copies of each of the Company's and ClickShip's articles of incorporationShares, as amended and as in effect except for anti-dilution provisions which have been validly waived on the date hereof (the "CERTIFICATE OF INCORPORATION"), and each of the Company's and ClickShip'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, Class B Common Stock or Preferred Stock and the material rights of the holders thereof in respect thereto.or

Capitalization and Indebtedness. As of the date hereof and immediately prior to the issuance of the Series D Preferred Shares and Warrants hereunderhereof, the authorized capital stock of the Company Corporation consists of 20,000,000 (i) 100,000,000 shares of Common Stock, par value $0.001 per share, of which which, as of the date hereof, 5,847,519 8,657,913 shares are issued and outstanding, 2,000,000 plus 29,575 additional shares authorized for issuance, but not yet issued and outstanding, 1,853,767 shares of Class B 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 "Class B Common ii) 10,000,000 shares of Preferred Stock"), par value $0.001 per share, of which 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"), none 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 400,000 shares of 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 "Company Preferred"), of which as of the date hereof no shares are issued 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, 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 CompanyCorporation. Except as set forth on Schedule 3(c)in the Financing Agreement and as contemplated by this Warrant, as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company Corporation or any of its subsidiaries, or contracts, commitments, understandings or arrangements by which the Company Corporation or any of its subsidiaries is or may become bound to issue additional shares of capital stock of the Company Corporation or any of its subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Corporation or any of its subsidiaries, and (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 Corporation or any of its subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act (except the Registration Rights Agreement and the ClickShip 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 issuance of the Securities or the ClickShip Warrants or ClickShip Warrant Shares as described in this Agreement. The Company has furnished to the Buyer true and correct copies of each of the Company's and ClickShip's articles of incorporation, as amended and as in effect on the date hereof (the "CERTIFICATE OF INCORPORATION"), and each of the Company's and ClickShip'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, Class B Common Stock or Preferred Stock and the material rights of the holders thereof in respect theretoShares.

Capitalization and Indebtedness. As (a) The description of the date hereof and immediately prior to the issuance capital stock of the Series D Preferred Shares and Warrants hereunderCompany, the number of shares of authorized capital stock of the Company consists and the number of 20,000,000 shares of Common Stock, of which as capital stock of the date hereof, 5,847,519 shares are Company that is issued and outstanding, 2,000,000 shares of Class B Common Stock (outstanding are accurately and completely described in all material respects in the "Class B Common Stock"Registration Statement and the Prospectus or as set forth in Schedule 4.2(a), 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 400,000 shares of 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 "Company Preferred"), of which as of the date hereof no shares are issued and outstanding. 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, Class B Common Stock, Company Preferred Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances Liens suffered or permitted by the Company. Except as disclosed in the Registration Statement and the Prospectus or as set forth on in Schedule 3(c4.2(a), 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 1933 Securities Act (except the Registration Rights Agreement and the ClickShip Registration Rights 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 Securities or the ClickShip Warrants or ClickShip Warrant Shares Common Stock as described in this Agreement. The Company has furnished to the Buyer Company's Registration Statement contains true and correct copies of each of the Company's and ClickShip's articles Certificate 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.

Capitalization and Indebtedness. As of the date ------------------------------- hereof and immediately prior to the issuance of the Series D Preferred Shares and Warrants Securities hereunder, the authorized capital stock of the Company consists of 20,000,000 100,000,000 shares of Common Stock, of which as of the date hereof, 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 25,563,111 shares are issued and outstanding, and 400,000 10,000,000 shares of 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 "Company Preferred"), of which as of the date hereof no shares are issued and 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, Class B Common Stock, Company Preferred 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 set forth on Schedule 3(c), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments 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) 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 is obligated to register the sale of any of their securities under the 1933 Act (except the Series F Registration Rights Agreement and the ClickShip 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 Securities or the ClickShip Warrants or ClickShip Warrant Shares as described in this Agreement. The Company has furnished to the Buyer true and correct copies of each of the Company's and ClickShip's articles Certificate 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.

Capitalization and Indebtedness. (a) As of the date hereof (and immediately prior to the issuance as of the Series D Preferred Shares and Warrants hereunderany Condition Precedent Date, as applicable), the authorized capital stock of the Company consists of 20,000,000 80,000,000 shares of Common Stock, of which as of the December 29, 2000 (and as of a date hereofnot more than 5 Business Days from any Condition Precedent Date, 5,847,519 shares are issued and outstanding, 2,000,000 shares of Class B Common Stock (the "Class B Common Stock"as applicable), of which as of the date hereof, no 37,480,264 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 were issued and outstanding, and 400,000 20,000,000 shares of Series C Junior Participating Preferred Stock preferred stock (the "Series C Preferred Stock" and collectively with ") of the Series A Preferred Stock and Series B Preferred Stock called the "Company Preferred")Company, of which as of the date hereof (and as of a date not more than 5 Business Days from any Condition Precedent Date, as applicable), no shares are issued and or outstanding. All of the outstanding shares have been validly issued and are fully paid and nonassessable. No shares of Common Stock, Class B Common Stock, Company Preferred 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 set forth on Schedule 3(c), as 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 subsidiariesCompany, 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 Capital Stock of the Company Company, other than rights created pursuant to this Agreement or any of its subsidiariespursuant 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 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 1933 Securities Act (except the Registration Rights Agreement and the ClickShip Registration Rights 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 Securities or the ClickShip Warrants or ClickShip Warrant Shares as described in Common Stock pursuant to this Agreement. The Company has furnished to the Buyer Underwriter true and correct copies of each of the Company's and ClickShip's articles of incorporation, as amended and as in effect on the date hereof (the "CERTIFICATE OF INCORPORATIONArticles of Incorporation"), and each of the Company's and ClickShip'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, Class B Common Stock or Preferred Stock and the material rights of the holders thereof in respect thereto.

Capitalization and Indebtedness. (a) As of the date hereof and immediately prior to the issuance of the Series D Preferred Shares and Warrants hereunderhereof, the authorized capital stock of the Company consists of 20,000,000 75,000,000 shares of Common Stock, of which as of the date hereof, 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 38,313,803 shares are issued and outstanding, and 400,000 5,000,000 shares of Series C Junior Participating Preferred Stock preferred stock (the "Series C Preferred Stock" and collectively with ") of the Series A Preferred Stock and Series B Preferred Stock called the "Company Preferred")Company, of which as of the date hereof no shares are issued and 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, Class B Common Stock, Company Preferred 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 set forth on Schedule 3(c)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 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 1933 Securities Act (except the Registration Rights Agreement and the ClickShip Registration Rights 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 Securities or the ClickShip Warrants or ClickShip Warrant Shares Common Stock as described in this Agreement. The Company has furnished to the Buyer Underwriter true and correct copies of each of the Company's and ClickShip's articles Certificate 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.

Capitalization and Indebtedness. As of the date ------------------------------- hereof and immediately prior to the issuance of the Series D Preferred Common Shares and Warrants hereunder, the authorized capital stock of the Company consists of 20,000,000 100,000,000 shares of Common Stock, of which as of the date hereof, 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 21,260,792 shares are issued and outstanding, and 400,000 10,000,000 shares of 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 "Company Preferred"), of which as of the date hereof no 2,000,000 shares are issued and 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, Class B Common Stock, Company Preferred 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 set forth on Schedule 3(c), as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments 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) 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 is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement and the ClickShip Registration Rights Agreement). There Except as disclosed on Schedule 3(c), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities or the ClickShip Warrants or ClickShip Warrant Shares as described in this Agreement. The Company has furnished to the Buyer true and correct copies of each of the Company's and ClickShip's articles Certificate 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.

Capitalization and Indebtedness. (a) As of the date hereof and immediately prior to the issuance of the Series D Preferred Shares and Warrants hereunderhereof, the authorized capital stock of the Company consists of 20,000,000 75,000,000 shares of Common Stock, of which as of the date hereof, 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 15,277,371 shares are issued and outstanding, and 400,000 15,000,000 shares of Series C Junior Participating Preferred Stock preferred stock (the "Series C Preferred Stock" and collectively with ") of the Series A Preferred Stock and Series B Preferred Stock called the "Company Preferred")Company, of which as of the date hereof no shares are issued and or outstanding. All of the outstanding shares have been validly issued and are fully paid and nonassessable. No shares of Common Stock, Class B Common Stock, Company Preferred 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 set forth on Schedule 3(c)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 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 1933 Securities Act (except the Registration Rights Agreement and the ClickShip Registration Rights 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 Securities or the ClickShip Warrants or ClickShip Warrant Shares Common Stock as described in this Agreement. The Company has furnished to the Buyer Underwriter true and correct copies of each of the Company's and ClickShip's articles Certificate 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.

Capitalization and Indebtedness. As of the date hereof and immediately prior to the issuance of the Series D Preferred Shares and Warrants hereunderhereof, the authorized capital stock of the Company consists of 20,000,000 100,000,000 shares of Common Stock, of which as of the date hereof, 5,847,519 shares are issued and outstanding, 2,000,000 shares of Class B Common Stock (the "Class B Common Stock")par value $.001 -18- 19 per share, of which as of the date hereofMay 9, no shares are issued and outstanding2001, 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 400,000 shares of 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 "Company Preferred"), of which as of the date hereof no 34,388,445 shares are issued 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, 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 set forth on Schedule 3(ccontemplated by this Warrant or as previously disclosed to the Holder in writing (including in the Loan and Security Agreement), as of the date hereof, (i) there are no outstanding optionsOptions, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its 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 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 is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement and the ClickShip Registration Rights Agreement)Securities Act. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any this Warrant or, upon exercise of this Warrant, the Securities issuance of Warrant Shares, except for anti-dilution provisions which have been validly waived on or the ClickShip Warrants or ClickShip Warrant Shares as described in this Agreement. The Company has furnished prior to the Buyer true and correct copies of each of the Company's and ClickShip's articles of incorporation, as amended and as in effect on the date hereof (the "CERTIFICATE OF INCORPORATION"), and each in respect of the Company's and ClickShip's By-lawsissuance of this Warrant and, as in effect on upon exercise of this Warrant, the date hereof (the "BY-LAWS"), and the terms issuance 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 theretoWarrant Shares.

Capitalization and Indebtedness. As of the date hereof and immediately prior to the issuance of the Series D Preferred Shares and Warrants hereunderhereof, the authorized capital stock of the Company consists of 20,000,000 25,000,000 shares of Common Stock, of which as of the date hereof, 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 hereof 10,947,188 shares are issued and outstanding, and 400,000 6,500,000 shares of Series C Junior Participating Preferred Stock ("Series C Preferred Stock" and collectively with the Series A Preferred Stock and Series B Preferred Stock called , par value $.01 per share (the "Company PreferredPreferred Stock"), none of which as of the date hereof no shares are issued and 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, Class B Common Stock, Company Preferred Stock or Preferred Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered created or permitted agreed to by the Company. Except as set forth on Schedule 3(c), 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 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 1933 Act (except the Registration Rights Agreement and Agreement) or which conflict in any way with 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 Securities or the ClickShip Warrants or ClickShip Warrant Shares as described in this Agreement. The Company has furnished to the Buyer true and correct copies of each of the Company's and ClickShip's articles Certificate 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.

Capitalization and Indebtedness. As of the date hereof and immediately prior to the issuance of the Series D Preferred Shares and Warrants hereunderhereof, the authorized capital stock of the Company consists of 20,000,000 60,000,000 shares of Common Stock, of which as of the date hereof, 5,847,519 21,335,061 shares are issued and outstanding, and 2,000,000 shares of Class B Common Stock preferred stock (the "Class B Common Preferred Stock")) of the Company, 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 400,000 shares of 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 "Company Preferred"), of which as of the date hereof no shares are issued and 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, Class B no shares of Common Stock, Company Preferred 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 set forth on Schedule 3(c), 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 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 13 FUEL(TM)PATENTS PENDING RAMIUS SECURITIES, LLC Capital Stock of the Company or any of its subsidiariesSubsidiaries, 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 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 1933 Securities Act (except the Registration Rights Agreement and the ClickShip Registration Rights 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 Securities or the ClickShip Warrants or ClickShip Warrant Shares as described in Common Stock pursuant to this Agreement. The Company has furnished to the Buyer Underwriter true and correct copies of each of the Company's and ClickShip's articles of incorporation, as amended and as in effect on the date hereof (the "CERTIFICATE OF INCORPORATIONArticles of Incorporation"), and each of the Company's and ClickShip'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, Class B Common Stock or Preferred Stock and the material rights of the holders thereof in respect thereto.

Capitalization and Indebtedness. As of the date hereof and immediately prior to the issuance of the Series D Preferred Shares and Warrants hereunderhereof, the authorized capital stock of the Company consists of 20,000,000 25,000,000 shares of Common Stock, of which as of the date hereofDecember 31, 5,847,519 1998, 8,631,087 shares are were issued and outstanding, 2,000,000 and four (4) million shares of Class B Common Preferred Stock par value $.01 per share (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 10,252 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 400,000 7,625 shares of 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 "Company Preferred"), of which as of the date hereof no shares are were issued and outstanding. All of the such outstanding shares have been validly issued and are fully paid and nonassessable. No Except as disclosed in Schedule 3(c), no shares of Common Stock, Class B Common Stock, Company Preferred 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 set forth on disclosed in 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 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 or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its subsidiaries, (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 1933 Act (except the Registration Rights Agreement and the ClickShip Registration Rights Agreement). There Except as disclosed in Schedule 3(c), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities or the ClickShip Warrants or ClickShip Warrant Shares as described in this Agreement. The Company has furnished to the Buyer true and correct copies of each of the Company's and ClickShip's articles Certificate 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.