SHARES.
ALL OF THE
ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK OF THE COMPANY ARE DULY
AUTHORIZED, VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE AND HAVE BEEN OFFERED,
ISSUED, SOLD AND DELIVERED BY THE COMPANY IN COMPLIANCE WITH ALL APPLICABLE
FEDERAL AND STATE SECURITIES LAWS.
NONE OF THE ISSUED AND OUTSTANDING SHARES OF
COMMON STOCK OR PREFERRED STOCK HAS BEEN ISSUED IN VIOLATION OF, OR IS SUBJECT
TO, ANY PREEMPTIVE RIGHTS, RIGHTS OF FIRST OFFER, RIGHTS OF FIRST REFUSAL OR
SUBSCRIPTION RIGHTS, EXCEPT AS SET FORTH IN SCHEDULE 3.1(C).
(D)
ALL OF THE COMMON STOCK, PREFERRED STOCK,
STOCK OPTIONS, WARRANTS, F&F C-2 SHARE RIGHTS AND SERIES C-3 ISSUANCE RIGHTS ARE
HELD OF RECORD BY THE HOLDERS AND IN THE AMOUNTS IDENTIFIED IN SCHEDULE 3.1(D).
SCHEDULE 3.1(D) ALSO SETS FORTH:
(I) THE NUMBER OF SHARES OF COMMON STOCK INTO
WHICH EACH SHARE OF PREFERRED STOCK IS CONVERTIBLE; (II) THE EXERCISE PRICE PER
SHARE OF EACH STOCK OPTION AND EACH WARRANT; (III) THE DATE OF GRANT OF EACH
STOCK OPTION AND EACH WARRANT AND THE EXPIRATION DATE THEREOF; (IV) THE NUMBER
OF SHARES OF COMMON STOCK OR PREFERRED STOCK ISSUABLE UPON THE EXERCISE OF EACH
STOCK OPTION OR WARRANT; AND (V) THE NUMBER OF SHARES OF COMMON STOCK OR
PREFERRED STOCK ISSUABLE AS A RESULT OF OUTSTANDING F&F C-2 SHARE RIGHTS AND
SERIES C-3 ISSUANCE RIGHTS.
TRUE AND COMPLETE COPIES OF THE STOCK RECORD BOOKS,
AGREEMENTS EVIDENCING WARRANTS, STOCK OPTIONS, F&F C-2 SHARE RIGHTS AND
SERIES C-3 ISSUANCE RIGHTS HAVE BEEN DELIVERED OR MADE AVAILABLE TO OPTIONEE.
EACH WARRANT AND STOCK OPTION WAS DULY ISSUED AND IS VALID AND IN FULL FORCE AND
EFFECT.
(E)
SCHEDULE 3.1(E) SETS FORTH (I) THE UNPAID
ACCRUED DIVIDENDS (WHETHER OR NOT DECLARED) WITH RESPECT TO EACH HOLDER OF
SHARES OF PREFERRED STOCK AND (II) THE PER DIEM ACCRUAL RATE OF DIVIDENDS WITH
RESPECT TO EACH SHARE OF PREFERRED STOCK PURSUANT TO THE TERMS OF THE
CERTIFICATE OF INCORPORATION.
THERE ARE NO DECLARED AND UNPAID DIVIDENDS OR
OTHER DISTRIBUTIONS WITH RESPECT TO ANY SHARES OF COMMON STOCK OR PREFERRED
STOCK.
(F)
EXCEPT (I) FOR THE STOCK OPTIONS AND
WARRANTS, (II) FOR THE ISSUANCE OF SHARES OF SERIES C-3 PREFERRED STOCK OR
VOTING COMMON STOCK PURSUANT TO THE FULCRUM PLAN OF MERGER AMENDMENT, (III) THE
F&F C-2 SHARE RIGHTS, (IV) AS SET FORTH IN THE CERTIFICATE OF INCORPORATION AND
(V) AS SET FORTH IN SCHEDULE 3.1(F), THERE ARE NO AGREEMENTS, ARRANGEMENTS,
OPTIONS, WARRANTS, CALLS, RIGHTS OR COMMITMENTS OF ANY CHARACTER RELATING TO THE
ISSUANCE, SALE, PURCHASE OR REDEMPTION OF ANY SHARES OF CAPITAL STOCK OR OTHER
EQUITY INTEREST OF THE COMPANY, WHETHER ON CONVERSION OF OTHER SECURITIES OR
OTHERWISE.
EXCEPT FOR THIS AGREEMENT AND AS SET FORTH IN SCHEDULE 3.1(F), THE
COMPANY IS NOT A PARTY TO ANY, AND TO THE KNOWLEDGE OF THE COMPANY THERE EXISTS
NO, STOCKHOLDER AGREEMENT, VOTING TRUST AGREEMENT OR ANY OTHER SIMILAR CONTRACT,
AGREEMENT, ARRANGEMENT, COMMITMENT, PLAN OR UNDERSTANDING RESTRICTING OR
OTHERWISE RELATING TO THE VOTING, DIVIDEND, OWNERSHIP OR TRANSFER RIGHTS OF ANY
SHARES