Common use of Capitalization and Related Matters Clause in Contracts

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and exercise of the Warrants hereunder (after giving effect to anti-dilution adjustments) are as set forth on Schedule 4.1(d) hereto. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock except as set forth in Schedule 4.1(d), and will not have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except as set forth in Schedule 4.1(d). As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company's capital stock will be validly issued, fully paid and nonassessable. Except as set forth on the Schedule 4.1(d), there are no statutory or contractual stockholders' preemptive rights or notices with respect to the issuance of the Shares and Warrants hereunder. Subject to and based on the accuracy of all representations made by Roaring Fork in this Offering, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Shares and Warrants hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and exercise conversion of the Warrants hereunder (after giving effect to anti-dilution adjustments) Notes are as set forth on Schedule 4.1(d) hereto. A. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock except other than the warrants, Options and Notes as set forth in Schedule 4.1(d)A, and will not have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except other than the warrants and Options as set forth in Schedule 4.1(d). A. As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company's ’s capital stock will be validly issued, fully paid and nonassessable. Except as set forth on the Schedule 4.1(d), there There are no statutory or contractual stockholders' ’ preemptive rights or notices with respect to the issuance of the Shares and Warrants Notes hereunder. Subject to and based on the accuracy of all representations made by Roaring Fork in this Offering, the The Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Shares and Warrants Notes hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the each Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and exercise of the Warrants issued hereunder (after giving effect to anti-dilution adjustments) are as set forth on the Capitalization Schedule 4.1(d) and Addendum attached hereto. As of the each Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock except as set forth in Schedule 4.1(d)the Capitalization Schedule, and will not have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except as set forth in Schedule 4.1(d)the Capitalization Schedule. As of the each Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company's capital stock will be validly issued, fully paid and nonassessable. Except as set forth on the Capitalization Schedule 4.1(d)and Addendum, there are no statutory or contractual stockholders' preemptive rights or notices with respect to the issuance of the Shares Common Stock and Warrants hereunder. Subject to and based on the accuracy of all representations made by Roaring Fork all Purchasers in this Offering, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Shares Common Stock and Warrants hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. The capitalization of the Company is as set forth on SCHEDULE 4.1(D), which SCHEDULE 4.1(D) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and exercise of the Warrants hereunder (after giving effect to anti-dilution adjustments) are as set forth on Schedule 4.1(dSCHEDULE 4.1(D) hereto. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock except as set forth in Schedule 4.1(dSCHEDULE 4.1(D), and will not have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except as set forth in Schedule 4.1(dSCHEDULE 4.1(D). As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company's capital stock will be validly issued, fully paid and nonassessable. Except as set forth on the Schedule 4.1(dSCHEDULE 4.1(D), there are no statutory or contractual stockholders' preemptive rights or notices with respect to the issuance of the Shares and Warrants hereunder. Subject to and based on the accuracy of all representations made by Roaring Fork the Purchasers in this Offering, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Shares and Warrants hereunder do not require registration under the Securities Act or any applicable state securities laws. No further approval or authorization of any stockholder, the Board of Directors of the Company or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company's capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company's stockholders.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock capitalization of Holdings and the Company, the capitalization and ownership of the Company and the shares outstanding equity securities of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and exercise each of the Warrants hereunder (after giving effect to anti-dilution adjustments) are other Loan Parties is as set forth shown on Schedule 4.1(d) heretothe Corporate Schedule. As Immediately following the Closing, none of the Closing Date, the Company Loan Parties will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock except equity securities other than as set forth in shown on the Corporate Schedule 4.1(d), and will not have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stocksecurities, except other than as set forth in Schedule 4.1(d)shown on the Corporate Schedule. As of the Closing Date, the Company Loan Parties will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stockequity securities, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereofCorporate Schedule. As of the ClosingClosing Date, all of the Loan Parties' outstanding shares of the Company's capital stock securities will be validly issued, fully paid and nonassessable. Except as set forth on Holdings has, and will maintain at all times, sufficient authorized shares of Common Stock to allow for the Schedule 4.1(d), there exercise of the Warrants. There are no statutory or contractual stockholders' preemptive rights or notices with respect to the issuance of the Shares and Warrants hereunderhereunder except such as have been waived. Subject to and based on the accuracy of all representations made by Roaring Fork in this Offering, the The Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Shares and Warrants Securities hereunder do not require registration under the Securities Act or any applicable state securities lawslaws except as provided in Section 5.1(k). There are no agreements among the Company's stockholders with respect to the voting or transfer of the Company's capital securities other than as contemplated herein.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and exercise of the Warrants issued hereunder (after giving effect to anti-dilution adjustments) are as set forth on Schedule 4.1(d) attached hereto. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock except as set forth in Schedule 4.1(d)the Capitalization Schedule, and will not have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except as set forth in Schedule 4.1(d)the Capitalization Schedule. As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company's ’s capital stock will be validly issued, fully paid and nonassessable. Except as set forth on the Schedule 4.1(d), there There are no statutory or contractual stockholders' ’ preemptive rights or notices with respect to the issuance of the Shares Common Stock and Warrants hereunder. Subject to and based on the accuracy of all representations made by Roaring Fork all Purchasers in this Offering, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Shares Common Stock and Warrants hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and exercise conversion of the Warrants hereunder Notes (after without giving effect to anti-dilution adjustments) are as set forth on Schedule 4.1(d) hereto. A. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock except other than the warrants, Options and Notes as set forth in Schedule 4.1(d)A, and will not have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except other than the warrants and Options as set forth in Schedule 4.1(d). A. As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company's ’s capital stock will be validly issued, fully paid and nonassessable. Except as set forth on the Schedule 4.1(d), there There are no statutory or contractual stockholders' ’ preemptive rights or notices with respect to the issuance of the Shares and Warrants Notes hereunder. Subject to and based on the accuracy of all representations made by Roaring Fork in this Offering, the The Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Shares and Warrants Notes hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the Closing Date and immediately thereafterMay 12, 2005, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and exercise of the Warrants issued hereunder (after giving effect to anti-dilution adjustments) are as set forth on the Capitalization Schedule 4.1(d) and Addendum attached hereto. As of the Closing DateMay 12, 2005, the Company will does not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock except as set forth in Schedule 4.1(d)the Capitalization Schedule, and will not have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except as set forth in the Capitalization Schedule 4.1(d)and except as may be issued from time to time pursuant to Closings under this Agreement. As of the Closing DateMay 12, 2005, the Company will is not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company's capital stock will be validly issued, fully paid and nonassessable. Except as set forth on the Schedule 4.1(d), there There are no statutory or contractual stockholders' preemptive rights or notices with respect to the issuance of the Shares Common Stock and Warrants hereunder. Subject to and based on the accuracy of all representations made by Roaring Fork all Purchasers in this Offering, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Shares Common Stock and Warrants hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and exercise conversion of the Warrants hereunder Notes (after without giving effect to anti-dilution adjustments) are as set forth on Schedule 4.1(d) hereto. A. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock except other than the warrants, Options and Notes as set forth in Schedule 4.1(d)A, and will not have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except other than the warrants and Options as set forth in Schedule 4.1(d). A. As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company's ’s capital stock will be validly issued, fully paid and nonassessable. Except as set forth on the Schedule 4.1(d), there There are no statutory or contractual stockholders' ’ preemptive rights or notices with respect to the issuance of the Shares Notes and Warrants hereunder. Subject to and based on the accuracy of all representations made by Roaring Fork in this Offering, the The Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Shares and Warrants Notes hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and exercise of the Warrants hereunder (after giving effect to anti-dilution adjustments) are Parent is as set forth on the "Capitalization Schedule" attached hereto as Schedule 4.1(d) hereto4.1(D). As of the Closing Date, the Company authorized capital stock or other equity interests of each of the Subsidiaries of Parent and the number and ownership of all outstanding capital stock or equity interests of each of the Loan Parties (other than Parent) is set forth on Schedule 4.1(D). Except as set forth on the Schedule 4.1(D), as of the Closing Date, none of the Loan Parties will not have outstanding any capital stock or securities convertible into or exchangeable for any shares of its capital stock except as set forth in Schedule 4.1(d), and none will not have outstanding any rights or options to subscribe for or to purchase its capital stock (or other equity interests) or any stock or securities convertible into or exchangeable for its capital stock, except as set forth in Schedule 4.1(dstock (or other equity interests). As of the Closing Date, none of the Company Loan Parties will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereofstock or other equity interests. As of the Closing, all of the outstanding shares and capital stock or other equity interests of the Company's capital stock Loan Parties will be validly issued, fully paid and nonassessable. Except as set forth on the Schedule 4.1(d), there are no statutory or contractual stockholders' preemptive rights or notices with respect to the issuance None of the Shares and Warrants hereunder. Subject to and based on the accuracy of all representations made by Roaring Fork in this Offering, the Company has not Loan Parties have violated any applicable federal or state securities laws Laws, in any material respect, in connection with the offer, sale or issuance of any of its capital stockstock or other equity interests, and the offer, sale and issuance of the Shares and Warrants Notes hereunder or of Term Note B do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and exercise of the Warrants issued hereunder (after giving effect to anti-dilution adjustments) are as set forth on the Capitalization Schedule 4.1(d) and Addendum attached hereto. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock except as set forth in Schedule 4.1(d)the Capitalization Schedule, and will not have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except as set forth in Schedule 4.1(d)the Capitalization Schedule. As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company's capital stock will be validly issued, fully paid and nonassessable. Except as set forth on the Capitalization Schedule 4.1(d)and Addendum, there are no statutory or contractual stockholders' preemptive rights or notices with respect to the issuance of the Shares Common Stock and Warrants hereunder. Subject to and based on the accuracy of all representations made by Roaring Fork all Purchasers in this Offering, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Shares Common Stock and Warrants hereunder do not require registration under the Securities Act or any applicable state securities laws.