Common use of Capitalization and Ownership of the Company Clause in Contracts

Capitalization and Ownership of the Company. (a) The authorized capital stock of the Company consists of 100,000 shares of common stock, $0.01 par value per share (the "Common Stock") and 100,000 shares of Preferred Stock $0.01 par value per share (the "Preferred Stock"). There are issued and outstanding (a) 20,543 shares of Common Stock, of which no shares are held as treasury stock and (b) 10,000 shares of Series A Preferred Stock and 17,500 shares of Series B Preferred Stock, of which no shares are held as treasury stock, and all of such shares of Common Stock and Preferred Stock are held of record and beneficially by the Seller, free and clear of any and all Encumbrances. Immediately following the consummation of the transactions contemplated hereby, all of such issued and outstanding shares shall be held of record and beneficially by the Purchaser, free and clear of any and all Encumbrances. All of the outstanding shares of capital stock of the Company have been duly and validly issued, are fully paid and nonassessable. There are no agreements restricting the transfer of, or affecting the rights of any holder of, any shares of the Company's capital stock or any other securities of the Company, there are no preemptive rights or other rights to be protected from dilution on the part of any holder of any securities of the Company and there are no rights requiring the Company or any of its Subsidiaries to repurchase, redeem or acquire any of the securities of the Company. (b) There are no outstanding options, warrants, rights, or other agreements or commitments of any kind obligating the Company, contingently or otherwise, to issue or sell any shares of its capital stock or any securities or obligations convertible into, or exchangeable for, any shares of its capital stock, and no authorization therefor has been given. There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Company. Section 3.2 of the Disclosure Schedule sets forth the names of the record and beneficial holders of all outstanding options, warrants or other rights to purchase, sell or otherwise dispose of, or rights to exchange or convert into, any shares of the Company's capital stock and the number of shares, exercise or conversion prices and expiration dates of such options, warrants or other rights. There are no agreements with respect to the voting or transfer of capital stock of the Company or with respect to any other aspect of their affairs. None of the outstanding shares of capital stock or other securities of the Company or its Subsidiaries was issued, sold or offered in violation of the Securities Act or the securities or blue sky laws of any state or jurisdiction, or any applicable securities laws in the relevant jurisdictions outside of the United States. Neither the Company or its Subsidiaries has any obligation to any direct or indirect holder of its securities to effect a registration thereof for sale under the Securities Act.

Capitalization and Ownership of the Company. (a) The authorized capital stock of the Company consists of 100,000 18,000,000 shares of common stockCommon Stock, $0.01 0.001 par value per share (the "Common Stock") and 100,000 share, 170,000 shares of Series A Preferred Stock; and 12,337,112 shares of Series B Preferred Stock $0.01 par value per share (together with the "Common Stock and the Series A Preferred Stock", the “Company Stock”). There As of the date hereof, there are issued and outstanding (a) 20,543 1,964,888 shares of Common Stock, of which no shares are held as treasury stock and stock, (b) 10,000 168,001 shares of Series A Preferred Stock Stock, of which no shares are held as treasury stock, and 17,500 (c) 9,264,130 shares of Series B Preferred Stock, of which no shares are held as treasury stock, and all of such shares of Common Stock and Preferred Stock are held of record and beneficially by the SellerPersons and in the respective amounts set forth on Section 3.2(a) of the Disclosure Schedule, free and clear of any and all EncumbrancesLiens. Immediately following the consummation As of the transactions contemplated herebydate hereof, (i) (A) 453,477 shares of Common Stock are reserved for issuance pursuant to outstanding Warrants to purchase Common Stock, (B) 7,862 shares of Common Stock are reserved for issuance pursuant to the conversion of the Series A Preferred Stock issuable upon exercise of certain outstanding Warrants to purchase Series A Preferred Stock, and (C) 1,723,311 shares of Common Stock are reserved for issuance pursuant to the conversion of the Series B Preferred Stock issuable upon exercise of certain outstanding Warrants to purchase Series B Preferred Stock; (ii) 896,466 shares of Common Stock are reserved for issuance pursuant to outstanding Options, all of such issued and which have been granted under the Company Stock Option Plan; (iii) 1,350 shares of Series A Preferred Stock are reserved for issuance pursuant to outstanding Series A Preferred Warrants; (iv) 1,723,311 shares shall be held of record and beneficially by the Purchaser, free and clear of any and all EncumbrancesSeries B Preferred Stock are reserved for issuance pursuant to outstanding Series B Preferred Warrants. All of the outstanding shares of capital stock of the Company are duly authorized and have been duly and validly issued, and are fully paid and nonassessable. There are no agreements restricting the transfer of, or affecting the rights of any holder of, any shares of the Company's capital stock or any other securities of the Company, there are no preemptive rights or other rights to be protected from dilution on the part of any holder of any securities of the Company and there are no rights requiring the Company or any of its Subsidiaries to repurchase, redeem or acquire any of the securities of the Company. (b) There are no outstanding options, warrants, rights, or other agreements or commitments of any kind obligating the Company, contingently or otherwise, to issue or sell any shares of its capital stock or any securities or obligations convertible into, or exchangeable for, any shares of its capital stock, and no authorization therefor has been given. There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Company. Section 3.2 of the Disclosure Schedule sets forth the names of the record and beneficial holders of all outstanding options, warrants or other rights to purchase, sell or otherwise dispose of, or rights to exchange or convert into, any shares of the Company's capital stock and the number of shares, exercise or conversion prices and expiration dates of such options, warrants or other rights. There are no agreements with respect to the voting or transfer of capital stock of the Company or with respect to any other aspect of their affairs. None of the outstanding shares of capital stock or other securities of the Company or its Subsidiaries was issued, sold or offered Stock were issued in violation of the Securities Act or the securities or blue sky laws of any state or jurisdiction. (b) The Company has no outstanding bonds, debentures, notes or other indebtedness that have the right to vote on any matters on which the Stockholders can vote. (c) Except as set forth on Section 3.2(c) of the Disclosure Schedule, there are not as of the date hereof, and at the Effective Time there will not be, any (i) agreements restricting the transfer of stock held by, or affecting the rights of any applicable Stockholder, (ii) preemptive rights on the part of any holder of any class of securities laws of the Company and (iii) subscriptions, outstanding options, conversion or exchange rights, warrants, repurchase or redemption agreements, or other agreements, claims or commitments of any kind obligating the Company, contingently or otherwise, to issue, transfer, deliver or sell any of its Equity Interests, and no authorization therefor has been given. The agreements set forth on Section 3.2(c) of the Disclosure Schedule shall automatically terminate, or be terminated, effective upon the Closing. The issued and outstanding Options are held by the persons and in the relevant jurisdictions outside amounts set forth on Section 3.2(c) of the United States. Neither Disclosure Schedule. (d) To the Knowledge of the Company, other than the Third Amended and Restated Investors’ Rights Agreement dated August 30, 2004, as amended, there are no stockholder agreements, voting trusts, proxies or other agreements or understandings with respect to the voting of the Company or its Subsidiaries has any obligation to any direct or indirect holder of its securities to effect a registration thereof for sale under Stock. Such Third Amended and Restated Investors’ Rights Agreement shall be terminated effective upon the Securities ActClosing.

Capitalization and Ownership of the Company. (a) The authorized capital stock of the Company consists of 100,000 (1) 1,903,000 shares of common stock, $0.01 par value per share (the "Voting Common Stock", 66,780 of which will be outstanding on the Closing Date; (2) 72,000 shares of Class A Common Stock, no shares of which will be outstanding on the Closing Date; and 100,000 (3) 1,400,000 shares of Preferred Stock Stock, $0.01 .01 par value per share (the "Preferred Stock"). There are issued and outstanding (a) 20,543 shares of Common Stockvalue, of which no (i) 65,000 shares are held as treasury stock and (b) 10,000 shares of have been designated Series A Preferred Stock and 17,500 Stock, 64,665 shares of which are outstanding, (ii) 30,000 shares have been designated Series B Preferred Stock, 28,144 shares of which no are outstanding, (iii) 380,000 shares have been designated Series C Preferred Stock, 374,462 shares of which are outstanding, (iv) 50,000 shares have been designated Series D Preferred Stock, 45,695 shares of which are outstanding, (v) 30,000 shares have been designated Series E Preferred Stock, 25,816 shares of which are outstanding, (vi) 210,000 shares have been designated Series F Preferred Stock, 208,710 shares of which are outstanding, and (vii) 635,000 shares are held as treasury stockundesignated and unissued. The record and, and all of such shares of Common Stock and Preferred Stock are held of record and beneficially by to the Seller, free and clear of any and all Encumbrances. Immediately following the consummation best knowledge of the transactions contemplated herebyCompany, all of such issued and outstanding shares shall be held of record and beneficially by the Purchaser, free and clear of any and all Encumbrances. All beneficial ownership of the outstanding capital stock of the Company as of the Closing Date is set forth in Exhibit D. All such outstanding shares are duly authorized, validly issued, fully paid and nonassessable, and are not, and will not have been, issued in violation of any preemptive rights. Except as set forth in Exhibit C, Exhibits E-1 and E-2, and the Organic Documents, no issued, no authorized but unissued and no treasury shares of capital stock of the Company have been duly and validly issuedare subject to any preemptive right, are fully paid and nonassessable. There are no agreements restricting the transfer ofoption, warrant, right of conversion or affecting the rights of any holder of, any shares of the Company's capital stock purchase or any other securities similar right issued or granted by the Company or, to the best knowledge of the Company, by any of its shareholders. Except as set forth in the Organic Documents of the Company or in Section 19, there are no preemptive rights or other rights to be protected from dilution on the part of any holder of any securities of the Company and there are no rights requiring the Company or any of its Subsidiaries to repurchase, redeem or acquire any of the securities of the Company. (b) There are no outstanding options, warrants, rights, or other agreements or commitments of any kind obligating the Company, contingently or otherwise, to issue or sell any shares of its capital stock or any securities or obligations convertible into, or exchangeable for, any shares of its capital stock, and no authorization therefor has been given. There are no outstanding stock appreciation, phantom stock, profit participation or similar rights understandings with respect to the Company. Section 3.2 voting, sale or transfer of the Disclosure Schedule sets forth the names of the record and beneficial holders of all outstanding options, warrants or other rights to purchase, sell or otherwise dispose of, or rights to exchange or convert into, any shares of the Company's capital stock and the number of shares, exercise or conversion prices and expiration dates of such options, warrants or other rights. There are no agreements with respect to the voting or transfer of capital stock of the Company or with respect to any other aspect of their affairs. None which the Company or, to the best knowledge of the outstanding shares of capital stock or other securities of the Company or its Subsidiaries was issuedCompany, sold or offered in violation of the Securities Act or the securities or blue sky laws of any state or jurisdiction, or any applicable securities laws in the relevant jurisdictions outside of the United States. Neither the Company or its Subsidiaries has any obligation to any direct or indirect holder of its securities to effect Affiliates is a registration thereof for sale under the Securities Actparty.

Capitalization and Ownership of the Company. (a) The authorized capital stock of the Company consists of 100,000 150,000,000 shares of common stock, $0.01 .0001 par value per share (the "Common Stock") ), and 100,000 1,000,000 shares of Preferred Stock preferred stock, $0.01 .0001 par value per share (the "Preferred Stock"), of which 37,911 shares have been designated Series B Preferred Stock and of which 5,000 shares have been designated Series C Preferred Stock. There are issued and outstanding (a) 20,543 41,654,747 shares of Common Stock, of which no shares are held as treasury stock and (b) 10,000 shares of Series A Preferred Stock and 17,500 shares of Series B Preferred Stock, of which no 146,500 shares are held as treasury stock, and (b) 3,200 shares of Preferred Stock, (which consists of zero shares of Series B Preferred Stock and 3,200 shares of Series C Preferred Stock), of which zero shares are held as treasury stock and all of such shares of Common Stock and Preferred Stock are held of record and beneficially by the SellerPersons and in the respective amounts set forth on Section 2.2 of the Disclosure Schedule, and, to the Knowledge of the Company, all of such shares shall be held free and clear of any and all EncumbrancesLiens. Immediately following Following the consummation of the transactions contemplated herebyhereby and by the Exchange Agreement, all of such issued and outstanding shares shall be held of record and beneficially by the PurchaserPersons and in the respective amounts set forth on Section 2.2 of the Disclosure Schedule, all of the shares of Series D Preferred Stock, Series E Preferred Stock, Series G Preferred Stock, Series H Preferred Stock and Series I Preferred Stock shall be held free and clear of any and all EncumbrancesLiens and, to the Knowledge of the Company, all of such other shares shall be held free and clear of any and all Liens. All of the outstanding shares of capital stock of the Company have been duly and validly issued, are fully paid and nonassessable. There Except as set forth in Section 2.2 of the Disclosure Schedule, there are no agreements restricting the transfer of, or affecting the rights of any holder of, any shares of the Company's capital stock or any other securities of the Company, there are no preemptive rights or other rights to be protected from dilution on the part of any holder of any securities of the Company and there are no rights requiring the Company or any of its Subsidiaries to repurchase, redeem or acquire any of the securities of the Company. (b) There . No shares of the capital stock of the Company or its Subsidiaries are reserved for any purpose. Except as set forth in Section 2.2 of the Disclosure Schedule, there are no outstanding options, warrants, rights, or other agreements or commitments of any kind obligating the Company, contingently or otherwise, to issue or sell any shares of its capital stock or any securities or obligations convertible into, or exchangeable for, any shares of its capital stock, and no authorization therefor has been given. There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Company. Section 3.2 2.2 of the Disclosure Schedule sets forth the names of the record and beneficial holders of all outstanding options, warrants or other rights to purchase, sell or otherwise dispose of, or rights to exchange or convert into, any shares of the Company's capital stock and the number of shares, exercise or conversion prices and expiration dates of such options, warrants or other rights. There None of the terms (including the purchase, exercise or conversion price thereof and the number of shares issuable thereunder) of any such options, warrants or other rights are subject to adjustment by reason of any circumstance, including the issuance of any Securities hereunder or the issuance of any securities directly or indirectly pursuant to any Securities issued hereunder, and none of such options, warrants or other rights which are subject to vesting provide for the acceleration of such vesting upon the occurrence of any circumstance, including the issuance of any Securities hereunder or the issuance of any securities directly or indirectly pursuant to any Securities issued hereunder. Except as set forth on Section 2.2 of the Disclosure Schedule, there are no agreements with respect to the voting or transfer of capital stock of the Company or with respect to any other aspect of their affairs. No stockholder or former stockholder of the Company or any of its Subsidiaries has any valid claim or rights against the Company or any of its Subsidiaries and the Company and its Subsidiaries do not have any Liability to any stockholder or former stockholder (including, without limitation, in each case any Liabilities arising in connection with or as a result of the transactions contemplated by the Transaction Documents). No action has been taken to effect any amendment to the Company's certificate of incorporation (as amended to date, including without limitation by the Preferred Designation) or bylaws (as amended to date), other than action of the board of directors of the Company to approve the Preferred Designation, Designation in the form of Exhibit B, attached hereto. The minute books (containing the records of meetings of stockholders, the board of directors and any committees of the board of directors) and the stock record books of the Company are all correct and complete and copies thereof have been made available to the Purchasers. None of the outstanding shares of capital stock or other securities of the Company or its Subsidiaries was issued, sold or offered in violation of the Securities Act or the securities or blue sky laws of any state or jurisdiction, or any applicable securities laws in the relevant jurisdictions outside of the United States. Neither Except as set forth in Section 2.2 of the Disclosure Schedule and as set forth in the Registration Agreement, the Company or its Subsidiaries has any no obligation to any direct or indirect holder of its securities to effect a registration thereof for sale under the Securities Act.