Common use of Capitalization; Status of Capital Stock Clause in Contracts

Capitalization; Status of Capital Stock. (a) As of the date of this Agreement, the Company has a total authorized capitalization consisting of (i) 125,000,000 shares of Common Stock, of which (a) 4,765,328 shares are issued and outstanding as of the date of this Agreement, and (b) 16,239,375 shares have been reserved for issuance upon exercise of options issuable under the Company’s 1997 Employee, Director and Consultant Stock Option Plan, as amended (the “Stock Plan”), of which options to purchase 11,342,561 shares have been granted to employees, consultants or directors and are outstanding as of the date of this Agreement and 1,675,328 shares have been issued pursuant to stock option exercises, which shares are included in the Common Stock outstanding; and (ii) 67,946,524 shares of Preferred Stock, of which 1,530,000 are designated as Series A Preferred Stock, 591,000 are designated as Series B Preferred Stock, 5,029,000 are designated as Series C Preferred Stock, 3,759,088 are designated as Series D Preferred Stock, 1,815,992 are designated as Series E Preferred Stock, 34,502,875 are designated as Series F Preferred Stock and 20,718,569 are designated as Series G Preferred Stock. As of the date of this Agreement, 1,530,000 shares of Series A Preferred Stock, 591,000 shares of Series B Preferred Stock, 4,355,000 shares of Series C Preferred Stock, 3,759,088 shares of Series D Preferred Stock, 1,813,485 shares of Series E Preferred Stock, 26,322,107 shares of Series F Preferred Stock, and 20,476,068 shares of Series G Preferred Stock are validly issued and outstanding. (b) A complete list of the capital stock of the Company that has been previously issued and the names in which such capital stock is registered on the stock transfer books of the Company is set forth in the Disclosure Letter. All the outstanding shares of capital stock of the Company have been duly authorized, and are validly issued, fully paid and non-assessable. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Company are as set forth in the Fourth Amended and Restated Certificate of Incorporation of the Company (the “Charter”), and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and in accordance with all applicable laws, except as such enforceability may be limited by any applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally. Except as otherwise set forth in the Disclosure Letter, no preemptive, conversion or other rights, options, warrants, subscriptions or purchase rights of any nature to acquire from the Company shares of capital stock or other securities are authorized, issued or outstanding, nor is the Company obligated in any other manner to issue shares of its capital stock or other securities except as contemplated by this Agreement. Except as set forth in the Disclosure Letter, there are no restrictions on the transfer of shares of capital stock of the Company other than those imposed by relevant federal and state securities laws and as otherwise contemplated by this Agreement. Other than as set forth in the Second Amended and Restated Stockholders Agreement dated August 30, 2004, there are no agreements, understandings, trusts or other collaborative arrangements or understandings concerning the voting of the capital stock of the Company. The offer and sale of all capital stock and other securities of the Company issued before the date of this Agreement complied with or were exempt from all applicable federal and state securities laws and no stockholder has a right of rescission with respect thereto.

Capitalization; Status of Capital Stock. (a) As of the date of this Agreement, the Company ChemGenics has a total authorized capitalization consisting of (i) 125,000,000 16,000,000 shares of Common Stock, of which (a) 4,765,328 shares are issued and outstanding as of the date of this Agreement, $.001 par value and (bii) 16,239,375 11,275,000 shares have been reserved for issuance upon exercise of options issuable under the Company’s 1997 Employeepreferred stock, Director and Consultant Stock Option Plan, as amended $.01 par value (the “Stock Plan”"Preferred Stock"), of which options to purchase 11,342,561 6,400,000 shares have been granted to employees, consultants or directors and are outstanding as of the date of this Agreement and 1,675,328 shares have been issued pursuant to stock option exercises, which shares are included in the Common Stock outstanding; and (ii) 67,946,524 shares of Preferred Stock, of which 1,530,000 are designated as Series A Convertible Preferred Stock, 591,000 $.01 par value ("Series A Preferred Stock"), 1,100,000 shares are designated as Series B Convertible Preferred Stock, 5,029,000 $.01 par value ("Series B Preferred Stock"), 775,000 shares are designated as Series C Convertible Preferred Stock, 3,759,088 $.01 par value ("Series C Preferred Stock"), and 3,000,000 shares are designated as Series D Preferred Stock, 1,815,992 are designated as $.01 par value ("Series E D Preferred Stock;" the Series A Preferred Stock, 34,502,875 are designated as Series F B Preferred Stock, Series C Preferred Stock and 20,718,569 Series D Preferred Stock are designated as Series G collectively the "Preferred Stock"). As 1,523,700 shares of the date of this AgreementCommon Stock are issued and outstanding, 1,530,000 6,150,732 shares of Series A Preferred StockStock are issued and outstanding, 591,000 1,063,366 shares of Series B Preferred StockStock are issued and outstanding, 4,355,000 767,739 shares of Series C Preferred Stock, 3,759,088 Stock are issued and outstanding and 3,000,000 shares of Series D Preferred Stock, 1,813,485 shares of Series E Preferred Stock, 26,322,107 shares of Series F Preferred Stock, and 20,476,068 shares of Series G Preferred Stock are validly issued and outstanding. (b) A complete list . Each outstanding share of the capital stock of the Company that has been previously issued and the names in which such capital stock Preferred Stock is registered on the stock transfer books date hereof convertible into one share of the Company is set forth in the Disclosure LetterCommon Stock. All the outstanding shares of capital stock of the Company ChemGenics have been duly authorized, and are validly issued, fully paid and non-assessable. The designations, powers, preferences, rights, qualifications, limitations Shares when issued and restrictions in respect of each class and series of authorized capital stock of the Company are as set forth in the Fourth Amended and Restated Certificate of Incorporation of the Company (the “Charter”), and all such designations, powers, preferences, rights, qualifications, limitations and restrictions are valid, binding and enforceable and delivered in accordance with all applicable lawsthe terms thereof, except as such enforceability are duly authorized, validly issued, fully-paid and non-assessable. The shares of Common Stock underlying the Warrant, when issued and delivered in accordance with the terms of the Warrant, are duly authorized, validly issued, and, assuming payment therefor in accordance with the terms hereof, fully-paid and non-assessable. Except for 2,006,400 shares of Common Stock that have been reserved for issuance upon exercise of stock options, 177,083 shares of Series A Preferred Stock that have been reserved for issuance upon exercise of warrants issued or to be issued to Comdisco, Inc. (the "Comdisco Leasing Warrants"), the shares of Common Stock reserved for issuance upon the conversion of the currently outstanding shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and upon the conversion of the shares of Series A Preferred Stock which may be limited by any applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally. Except as otherwise set forth in issued upon exercise of the Disclosure LetterComdisco Leasing Warrants, no preemptive, conversion or other rights, options, warrants, subscriptions or purchase rights of any nature to acquire from the Company ChemGenics, or commitments of ChemGenics to issue, shares of capital stock or other securities 22 30 are authorized, issued or outstanding, nor is the Company ChemGenics obligated in any other manner to issue shares or rights to acquire any of its capital stock or other securities except as contemplated by this Agreement. None of ChemGenics' outstanding securities or authorized capital stock are subject to any rights of redemption, repurchase, rights of first refusal, preemptive rights or other similar rights, whether contractual, statutory or otherwise, for the benefit of ChemGenics, or to ChemGenics' knowledge, any stockholder, or any other Person, except pursuant hereto or as set forth on Schedule 3.12, and to the knowledge of ChemGenics, except as set forth on Schedule 3.12, there are no voting agreements regarding its securities. Except as set forth in the Disclosure LetterSchedule 3.12, there are no restrictions on the transfer of shares of capital stock of the Company ChemGenics other than those imposed by relevant federal and state securities laws and as otherwise contemplated by this Agreement. Other than as set forth in the Second Amended and Restated Stockholders Agreement dated August 30, 2004, there are no agreements, understandings, trusts or other collaborative arrangements or understandings concerning the voting of the capital stock of the Company. The offer and sale of all capital stock and other securities of the Company issued before the date of this Agreement complied with or were exempt from all applicable federal and state securities laws and no stockholder has a right of rescission with respect thereto.