Common use of Authorized and Issued Capital Stock Clause in Contracts

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 shares of Common Stock and (ii) 10,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”). As of September 30, 2009, (i) 36,120,251 shares of Common Stock were issued and outstanding; (ii) no shares of Common Stock were held in the treasury of the Company; (iii) 2,581,501 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); and (iv) no shares of Preferred Stock were issued and outstanding. The issued and outstanding shares of Common Stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. Except as set forth in this Section 3(d), as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company are issued, reserved for issuance or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d), and other than the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”).

Authorized and Issued Capital Stock. The (a) As of the Effective Date, the authorized capital stock of the Company consists will consist of two hundred fifty million (i250,000,000) 200,000,000 shares of New Common Stock and fifty million (ii50,000,000) 10,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”)share. As of September 30, 2009the Effective Date, (i) 36,120,251 forty-nine million three hundred eleven thousand six hundred sixty-seven (49,311,667) shares of New Common Stock were will be issued and outstanding; , (ii) no shares of Common Stock were held in the treasury of the Company; preferred stock will be issued and outstanding, (iii) 2,581,501 other than the 12.25% Warrants, no warrants to purchase shares of New Common Stock were will be issued and outstanding, (iv) no shares of New Common Stock will be held by the Company in its treasury, (v) three million eight hundred eighty-eight thousand eight hundred eighty-nine (3,888,889) shares of New Common Stock will be reserved for future issuance pursuant to outstanding upon exercise of stock options and other rights to purchase or acquire shares of New Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan Company Plan, and (vi) other than shares of New Common Stock reserved for issuance upon the exercise of the Company or otherwise (the “Stock Plans”); and (iv) 12.25% Warrants, no shares of Preferred New Common Stock were issued and outstanding. The will be reserved for issuance upon the exercise of warrants to purchase shares of New Common Stock. (b) As of the Effective Date, all issued and outstanding shares of Common Stock capital stock of the Company and each of its Subsidiaries will have been duly authorized and validly issued and are will be fully paid and nonassessablenon-assessable, and are will not be subject to any preemptive rights. . (c) Except as set forth in this Section 3(d)5.4, as of the date of this AgreementEffective Date, no shares of capital stock or other equity securities or voting interest in the Company are will have been issued, reserved for issuance or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d. (d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d)5.4, and other than except as required by the Second Amended and Restated Stockholders AgreementPlan, dated as of June 2, 2005the Effective Date, neither the Company nor any of its Subsidiaries is will be party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription right, security, commitment, contract, arrangement or other right undertaking (including any preemptive right), agreement or commitment ) that (wi) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (xii) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (yiii) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or any of its Subsidiaries or (ziv) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear any of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)its Subsidiaries.

Authorized and Issued Capital Stock. The As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 500,000,000 shares of Common Stock and (ii) 10,000,000 20,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”). As of September 30May 8, 20092020, (i) 36,120,251 46,407,555 shares of Common Stock were issued and outstanding; , (ii) no 619,181 shares of Common Stock were held in the treasury of the Company; , (iii) 2,581,501 2,601,359 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) and restricted stock granted under any the Company’s stock option or stock-based compensation plan plans, (iv) 1,666,667 shares of the Company or otherwise (the “Common Stock Plans”); were reserved for issuance pursuant to outstanding warrants to purchase shares of Common Stock and (ivv) no shares of Preferred Stock were issued and outstanding. The issued and outstanding shares of Common Stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to and were not issued in violation of any preemptive or similar rights. Except as set forth in this Section 3(d2(b), and except as contemplated by the Investor Rights Agreement, dated as of April 30, 2019 (the “Investor Rights Agreement”), by and among the Company, X. Xxxxx FBR and Vintage Capital Management, LLC, as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company are issued, reserved for issuance issuance, or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described Except as set forth in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d2(b), and other than except as contemplated by the Second Amended and Restated Stockholders Investor Rights Agreement, dated as of June 2the date hereof, 2005, neither the Company nor any of its Subsidiaries is not party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription subscription, or other right (including any preemptive right), agreement agreement, or commitment that (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell sell, or transfer, or repurchase, redeem redeem, or otherwise acquire, or cause to be issued, delivered, sold sold, or transferred, or repurchased, redeemed redeemed, or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its SubsidiariesCompany, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend extend, or enter into any such option, warrant, call, right, security, commitment, contract, arrangement arrangement, or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock PlansCompany’s stock option or stock-based compensation plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests Company (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Investor Rights Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”).

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i1) 200,000,000 shares of Common Stock and (ii2) 10,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”). As of September 30, 2009, (i1) 36,120,251 shares of Common Stock were issued and outstanding; (ii2) no shares of Common Stock were held in the treasury of the Company; (iii3) 2,581,501 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); and (iv4) no shares of Preferred Stock were issued and outstanding. The issued and outstanding shares of Common Stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. Except as set forth in this Section 3(d2(b)(iv), as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company are issued, reserved for issuance or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d2(b)(iv) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunderin connection with the transactions contemplated by the Investment Agreement and this Agreement. Except as described in this Section 3(d2(b)(iv), and other than the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”).

Authorized and Issued Capital Stock. The (a) As of the Effective Date, the authorized capital stock of the Company consists will consist of two hundred fifty million (i250,000,000) 200,000,000 shares of New Common Stock and fifty million (ii50,000,000) 10,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”)share. As of September 30, 2009the Effective Date, (i) 36,120,251 forty-nine million three hundred eleven thousand six hundred sixty-seven (49,311,667) shares of New Common Stock were will be issued and outstanding; , (ii) no shares of Common Stock were held in the treasury of the Company; preferred stock will be issued and outstanding, (iii) 2,581,501 other than the 12.25% Warrants, no warrants to purchase shares of New Common Stock were will be issued and outstanding, (iv) no shares of New Common Stock will be held by the Company in its treasury, (v) three million eight hundred eighty-eight thousand eight hundred eighty-nine (3,888,889) shares of New Common Stock will be reserved for future issuance pursuant to outstanding upon exercise of stock options and other rights to purchase or acquire shares of New Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan Company Plan, and (vi) other than shares of New Common Stock reserved for issuance upon the exercise of the Company or otherwise (the “Stock Plans”); and (iv) 12.25% Warrants, no shares of Preferred New Common Stock were issued and outstanding. The will be reserved for issuance upon the exercise of warrants to purchase shares of New Common Stock. (b) As of the Effective Date, all issued and outstanding shares of Common Stock capital stock of the Company and each of its Subsidiaries will have been duly authorized and validly issued and are will be fully paid and nonassessablenon-assessable, and are will not be subject to any preemptive rights. . (c) Except as set forth in this Section 3(d)5.4, as of the date of this AgreementEffective Date, no shares of capital stock or other equity securities or voting interest in the Company are will have been issued, reserved for issuance or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d. (d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d)5.4, and other than except as required by the Second Amended and Restated Stockholders AgreementPlan, dated as of June 2, 2005the Effective Date, neither the Company nor any of its Subsidiaries is will be party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription right, security, commitment, contract, arrangement or other right undertaking (including any preemptive right), agreement or commitment that ) that (wi) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (xii) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (yiii) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or any of its Subsidiaries or (ziv) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear any of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)its Subsidiaries.

Authorized and Issued Capital Stock. The (a) As of the Effective Date, the authorized capital stock of the Company consists will consist of (i) 200,000,000 an amount of shares of New Common Stock and (ii) 10,000,000 shares any other equity securities, in each case as set forth in the Certificate of preferred stock, par value $0.01 per share (“Preferred Stock”)Incorporation. As of September 30, 2009the Effective Date, (i) 36,120,251 nine million nine hundred and nine thousand (9,909,000) shares of New Common Stock were issued and will be outstanding; , (ii) ninety one thousand (91,000) vested shares of restricted New Common Stock and/or restricted stock units of New Common Stock issued in accordance with and subject to the terms of the Management Incentive Plan will be outstanding (the “Emergence MIP Vested Grant”), (iii) New Warrants to purchase up to one million one hundred and eleven thousand one hundred and eleven (1,111,111) shares of New Common Stock will be outstanding, (iv) no shares of preferred stock will be issued and outstanding, (v) no shares of New Common Stock were will be held by the Company in the treasury of the Company; its treasury, (iiivi) 2,581,501 no more than four hundred twenty nine thousand (429,000) shares of New Common Stock were will be reserved for future issuance pursuant to outstanding upon exercise of stock options and other rights to purchase or acquire shares of New Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan the Management Incentive Plan (excluding the 91,000 shares of New Common Stock that may be reserved for issuance with respect to the Emergence MIP Vested Grant) and (vii) other than the one million one hundred and eleven thousand one hundred and eleven (1,111,111) shares of New Common Stock reserved for issuance upon exercise of the Company New Warrants and the shares of New Common Stock reserved for issuance for the Emergence MIP Vested Grant and/or for issuance upon exercise of upon exercise of stock options and other rights to purchase or otherwise (acquire shares of New Common Stock granted under the “Stock Plans”); and (iv) Management Incentive Plan, no shares of Preferred New Common Stock were issued and outstanding. The will be reserved for issuance as of the Effective Date. (b) As of the Effective Date, all issued and outstanding shares of Common Stock capital stock of the Company and each of its Subsidiaries will have been duly authorized and validly issued and are will be fully paid and nonassessablenon-assessable, and are (except as set forth in the Stockholders Agreement and the Certificate of Incorporation) will not be subject to any preemptive rights. . (c) Except as set forth in this Section 3(d)5.4, as of the date of this AgreementEffective Date, no shares of capital stock or other equity securities or voting interest in the Company are will have been issued, reserved for issuance or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d. (d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d)5.4, and other than except as set forth in the Second Amended Stockholders Agreement and Restated Stockholders Agreement, dated the Certificate of Incorporation as of June 2, 2005the Effective Date, neither the Company nor any of its Subsidiaries is will be party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription right, security, commitment, Contract, arrangement or other right undertaking (including any preemptive right), agreement or commitment ) that (wi) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (xii) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (yiii) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or any of its Subsidiaries or (ziv) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares Company or any of capital stock and equity interests its Subsidiaries. (as applicablee) Section 5.4(e) of each Subsidiary are owned beneficially the Disclosure Letter sets forth a complete and correct list of record by the ownership interest of the Company or another Subsidiary, free and clear each of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agentits Subsidiaries in their respective Subsidiaries, and Wachovia Capital Markets, LLC the type of entity and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as jurisdiction of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)organization of each such Subsidiary.

Authorized and Issued Capital Stock. The (a) As of the Effective Date, the authorized capital stock of the Company consists will consist of (i) 200,000,000 an amount of shares of New Common Stock and (ii) 10,000,000 shares any other equity securities, in each case, as set forth in the Certificate of preferred stock, par value $0.01 per share (“Preferred Stock”)Incorporation. As of September 30, 2009the Effective Date, (i) 36,120,251 nine million nine hundred and nine thousand (9,909,000) shares of New Common Stock were issued and will be outstanding; , (ii) ninety one thousand (91,000) vested shares of restricted New Common Stock and/or restricted stock units of New Common Stock issued in accordance with and subject to the terms of the Management Incentive Plan will be outstanding (the “Emergence MIP Vested Grant”), (iii) New Warrants to purchase up to one million one hundred and eleven thousand one hundred and eleven (1,111,111) shares of New Common Stock will be outstanding, (iv) no shares of preferred stock will be issued and outstanding, (v) no shares of New Common Stock were will be held by the Company in the treasury of the Company; its treasury, (iiivi) 2,581,501 no more than four hundred twenty nine thousand (429,000) shares of New Common Stock were will be reserved for future issuance pursuant to outstanding upon exercise of stock options and other rights to purchase or acquire shares of New Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan the Management Incentive Plan (excluding the 91,000 shares of New Common Stock that may be reserved for issuance with respect to the Emergence MIP Vested Grant) and (vii) other than the one million one hundred and eleven thousand one hundred and eleven (1,111,111) shares of New Common Stock reserved for issuance upon exercise of the Company New Warrants and the shares of New Common Stock reserved for issuance for the Emergence MIP Vested Grant and/or for issuance upon exercise of upon exercise of stock options and other rights to purchase or otherwise (acquire shares of New Common Stock granted under the “Stock Plans”); and (iv) Management Incentive Plan, no shares of Preferred New Common Stock were issued and outstanding. The will be reserved for issuance as of the Effective Date. (b) As of the Effective Date, all issued and outstanding shares of Common Stock capital stock of the Company and each of its Subsidiaries will have been duly authorized and validly issued and are will be fully paid and nonassessablenon-assessable, and are (except as set forth in the Stockholders Agreement and the Certificate of Incorporation) will not be subject to any preemptive rights. . (c) Except as set forth in this Section 3(d)5.4, as of the date of this AgreementEffective Date, no shares of capital stock or other equity securities or voting interest in the Company are will have been issued, reserved for issuance or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d. (d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d)5.4, and other than except as set forth in the Second Amended Stockholders Agreement and Restated Stockholders Agreement, dated the Certificate of Incorporation as of June 2, 2005the Effective Date, neither the Company nor any of its Subsidiaries is will be party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription right, security, commitment, Contract, arrangement or other right undertaking (including any preemptive right), agreement or commitment ) that (wi) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (xii) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (yiii) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or any of its Subsidiaries or (ziv) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares Company or any of capital stock and equity interests its Subsidiaries. (as applicablee) Section 5.4(e) of each Subsidiary are owned beneficially the Disclosure Letter sets forth a complete and correct list of record by the ownership interest of the Company or another Subsidiary, free and clear each of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agentits Subsidiaries in their respective Subsidiaries, and Wachovia Capital Markets, LLC the type of entity and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as jurisdiction of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)organization of each such Subsidiary.

Authorized and Issued Capital Stock. The authorized capital stock of the Company Borrower consists of (i) 200,000,000 95,000,000 shares of Common Stock Stock, of which (A) 69,479,340 shares were issued and outstanding as of the Closing Date, and (B) 20,999,665 shares were reserved for issuance upon the exercise or conversion, as the case may be, of outstanding options, warrants or other convertible securities as of the Closing Date; (ii) 10,000,000 5,000,000 shares of preferred stock, par value $0.01 per share of which (x) 821,496 shares have been designated as Series B Preferred Stock (the “Series B Preferred Stock”). As , of September 30, 2009, (i) 36,120,251 which 44,258 shares of Common Stock were issued and outstanding; (ii) no shares of Common Stock were held in the treasury of the Company; (iii) 2,581,501 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); and (iv) no shares of Series B Preferred Stock were issued and outstandingoutstanding as of the Closing Date, and no shares were reserved for issuance upon the exercise or conversion, as the case may be, of outstanding options, warrants or other convertible securities, and (y) 1,730,697 shares have been designated as Series E Preferred Stock (the “Series E Preferred Stock”), all of which shares of Series E Preferred Stock were issued and outstanding as of the Closing Date, and no shares were reserved for issuance upon the exercise or conversion, as the case may be, of outstanding options, warrants or other convertible securities. The All issued and outstanding shares of Common Stock, Series B Preferred Stock of the Company and each of its Subsidiaries Series E Preferred Stock have been duly authorized and validly issued and issued, are fully paid and nonassessable, have been issued and are sold in compliance with the registration requirements (including any exceptions therefrom) of federal and state securities laws or the applicable statutes of limitation have expired, and were not subject to issued in violation of any preemptive rightsrights or similar rights to subscribe for or purchase securities. Except as set forth herein or in this Section 3(dBorrower’s Historic SEC Reports, there are no (i) outstanding rights (including, without limitation, preemptive rights), as of the date of this Agreementwarrants or options to acquire, no or instruments convertible into or exchangeable for, any unissued shares of capital stock or other equity securities or voting interest in Borrower or any of Borrower’s Subsidiaries, or any contract, commitment, agreement, understanding or arrangement of any kind to which Borrower or any of Borrower’s Subsidiaries is a party and relating to the Company are issued, reserved for issuance or outstanding. Since the date sale of this Agreement, no shares of any capital stock or other equity securities convertible or voting interest in the Company have been issued exchangeable security of Borrower or reserved for issuance or become outstandingany of Borrower’s Subsidiaries, other than shares described in this Section 3(d) that have been issued upon the exercise options granted to directors and employees of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares Borrower pursuant to be issued hereunder. Except as described in this Section 3(d), and other than the its Second Amended and Restated Stockholders Agreement, dated as 2005 Equity Incentive Plan; or (ii) obligations of June 2, 2005, neither the Company nor Borrower or any of Borrower’s Subsidiaries to purchase redeem or otherwise acquire any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that (w) obligates the Company capital stock or any interest therein or to pay any dividend or make any other distribution in respect thereof. Other than the right of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any the holders of shares of the capital stock ofSeries B Preferred Stock to participate in the Rights Offering, there are no anti-dilution or price adjustment provisions, co-sale rights, registration rights, rights of first refusal or other equity or voting interests in, similar rights contained in the Company or terms governing any outstanding security of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, Borrower that will be triggered by the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock issuance of the Company (other than pursuant to restricted stock award agreements under Rights Offering Shares or the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)Conversion Shares.

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 50,000,000 shares of Common Stock and (ii) 10,000,000 5,000,000 shares of preferred stock, par value $0.01 0.001 per share (“Preferred Stock”)share. As of September 30the close of business on October 3, 20092017 (the "Capital Structure Date"), (i) 36,120,251 20,729,668 shares of Common Stock were issued and 20,704,668 were outstanding; , (ii) no shares of preferred stock were issued or outstanding, (iii) 25,000 shares of Common Stock were held by the Company in the treasury of the Company; treasury, (iiiiv) 2,581,501 100,420 shares of Common Stock were reserved for future issuance pursuant to upon settlement of outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”"RSUs") granted under any stock option or stock-based compensation plan of the Company or otherwise (the “"Stock Plans”"); , (v) 1,043,283 shares of Common Stock were reserved for issuance upon the exercise of outstanding stock options ("Options") granted under the Stock Plans, and (ivvi) no 2,699,999 shares of Preferred Common Stock were issued and outstandingreserved for issuance upon exercise of the Warrants. All capital stock or equity interests of each of the Company's Subsidiaries is owned by the Company. The issued and outstanding shares of Common Stock capital stock or equity interests of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and and, except for the preemptive right existing under that certain Securities Purchase Agreement, dated July 19, 2017 (the "Securities Purchase Agreement"), are not subject to any preemptive rights. Except as set forth in this Section 3(d), as at the close of business on the date of this AgreementCapital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company are or any of its Subsidiaries were issued, reserved for issuance or outstanding. Since the date close of this Agreementbusiness on the Capital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company or any of its Subsidiaries have been issued or issued, reserved for issuance or become outstanding, outstanding other than shares Shares described in this Section 3(d) that have been issued upon the vesting and settlement of RSUs, the vesting and exercise of outstanding Options granted under the Stock Plans or the exercise of the Warrants and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares shares to be issued hereunder. Except Other than as described set forth in (i) this Section 3(d), (ii) the RSU or Option award agreements with employees of the Company and other than its Subsidiaries providing for the Second Amended and Restated Stockholders issuance of up to 1,131,020 shares of Common Stock, (iii) the Warrants, (iv) the Securities Purchase Agreement, dated as (v) the Company's certificate of June 2, 2005incorporation and (vi) this Agreement, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that which (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the CompanyCompany or any of its Subsidiaries. All Issuance. The Investor Shares to be issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record sold by the Company or another Subsidiaryhereunder, when such Shares are issued and delivered against payment therefor in accordance with the terms hereof, will be duly and validly authorized, fully paid and non-assessable, free and clear of any and all liabilities, obligationsTaxes, liens, security interestspreemptive rights, mortgagesrights of first refusal, pledges, charges, or subscription and similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)rights.

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 100,000,000 shares of Common Stock and (ii) 10,000,000 30,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”). As of September 30April 15, 20092011, (i) 36,120,251 33,215,906 shares of Common Stock were issued and outstanding; (ii) no shares of Common Stock were held in the treasury of the Company; (iii) 2,581,501 915,316 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); and (iv) no shares of Preferred Stock were issued and outstanding. The issued and outstanding shares of Common Stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are have not subject to been issued in violation of any preemptive or similar rights. Except as set forth in this Section 3(d), as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company are issued, reserved for issuance or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, Shares and the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d), and other than the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive or similar right), agreement or commitment that (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”).