Common use of Capitalization of the Company and its Subsidiaries Clause in Contracts

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist of (i) 200,000,000 shares of Common Stock of which, as of the date hereof, 73,354,863 are issued and outstanding, (ii) 205,000,000 shares of excess stock, par value $.01 per share ("EXCESS STOCK"), of which, as of the date hereof, none are issued and outstanding, (iii) 200 shares of voting senior preferred stock, par value $1.00 per share ("SENIOR PREFERRED STOCK"), of which, as of the date hereof, none are issued and outstanding, and (iv) 5,000,000 shares of preferred stock, par value $1.00 per share ("PREFERRED STOCK"), of which (A) 940,000 shares have been designated Series A cumulative redeemable preferred stock and of which, as of the date hereof, 940,000 shares are issued and outstanding, (B) 400,000 shares have been designated Series B Preferred Shares and of which, as of the date hereof, 270,000 shares are issued and outstanding, (C) 416,667 shares have been designated Series C cumulative convertible redeemable preferred stock ("SERIES C STOCK") and of which, as of the date hereof, 416,667 shares are issued and outstanding, (D) 138,889 shares have been designated Series C-1 cumulative convertible redeemable preferred stock ("SERIES C-1 STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (E) 138,889 shares have been designated Series C-2 cumulative convertible redeemable preferred stock ("SERIES C-2 STOCK", and, together with the Series C Stock and Series C-1 Stock, the "SC STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (F) 694,445 shares have been designated Series D cumulative convertible redeemable preferred stock ("SERIES D STOCK") and of which, as of the date hereof, 694,445 shares are issued and outstanding, (G) 138,889 shares have been designated Series D-1 cumulative convertible redeemable preferred stock ("SERIES D-1 STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (H) 477,778 shares have been designated Series E cumulative convertible redeemable preferred stock ("SERIES E STOCK") and of which, as of the date hereof, 477,778 shares are issued and outstanding, and (I) 107,483 shares have been designated Series F cumulative redeemable preferred stock and of which, as of the date hereof, no shares are issued and outstanding. All issued and outstanding shares of capital stock of the Company (i) have been duly authorized and validly issued, (ii) are fully paid and non-assessable, (iii) were issued in compliance with all applicable federal and state Laws concerning the issuance of securities and (iv) are free of preemptive rights. As of the date hereof, (i) 11,175,648 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the exercise of the warrants (the "WARRANTS") listed on Section 4.2 of the Company Disclosure Schedule, (ii) 4,166,670 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C Stock, (iii) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C-1 Stock, (iv) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C-2 Stock, (v) 6,944,450 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series D Stock, (vi) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series D-1 Stock, and (vii) 4,778,000 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series E Stock. Except as set forth above and except as otherwise set forth on Section 4.2 of the Company Disclosure Schedule, as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of the Company; (ii) no securities of the Company or any of its subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company; (iii) no options or other rights to acquire from the Company or any of its subsidiaries, and no obligations of the Company or any of its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company; and (iv) no equity equivalents, interests in the ownership or earnings of the Company or any of its subsidiaries or other similar rights (including stock appreciation rights) (collectively, "COMPANY SECURITIES"). Except as set forth above and except as otherwise set forth on Section 4.2 of the Company Disclosure Schedule, there are no outstanding obligations of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company or any of its subsidiaries is a party or to which it is bound relating to the voting of any shares of capital stock of the Company.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist Company consists of (i) 200,000,000 shares of Common Stock of which, as of the date hereof, 73,354,863 are issued and outstanding, Three Hundred Million (ii300,000,000) 205,000,000 shares of excess stock, par value $.01 per share ("EXCESS STOCK")Shares, of which, as of the date hereofMay 28, none are 2003, One Hundred Twenty-Two Million Four Hundred Twenty-Six Thousand Six Hundred Sixty-Four (122,426,664) Shares were issued and outstanding, (iii) 200 shares of voting senior preferred stock, par value $1.00 per share ("SENIOR PREFERRED STOCK"), of which, as of the date hereof, none are issued and outstanding, ; and (ivii) 5,000,000 Five Million (5,000,000) shares of preferred stock, par value $1.00 0.001 per share ("PREFERRED STOCK"“Company Preferred Stock”), none of which (A) 940,000 shares have been designated Series A cumulative redeemable preferred stock and of which, are outstanding as of the date hereof, 940,000 shares are . All of the outstanding Shares have been validly issued and outstanding, (B) 400,000 shares have been designated Series B Preferred Shares and of which, as of the date hereof, 270,000 shares are issued and outstanding, (C) 416,667 shares have been designated Series C cumulative convertible redeemable preferred stock ("SERIES C STOCK") and of which, as of the date hereof, 416,667 shares are issued and outstanding, (D) 138,889 shares have been designated Series C-1 cumulative convertible redeemable preferred stock ("SERIES C-1 STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (E) 138,889 shares have been designated Series C-2 cumulative convertible redeemable preferred stock ("SERIES C-2 STOCK", and, together with the Series C Stock and Series C-1 Stock, the "SC STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (F) 694,445 shares have been designated Series D cumulative convertible redeemable preferred stock ("SERIES D STOCK") and of which, as of the date hereof, 694,445 shares are issued and outstanding, (G) 138,889 shares have been designated Series D-1 cumulative convertible redeemable preferred stock ("SERIES D-1 STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (H) 477,778 shares have been designated Series E cumulative convertible redeemable preferred stock ("SERIES E STOCK") and of which, as of the date hereof, 477,778 shares are issued and outstanding, and (I) 107,483 shares have been designated Series F cumulative redeemable preferred stock and of which, as of the date hereof, no shares are issued and outstanding. All issued and outstanding shares of capital stock of the Company (i) have been duly authorized and validly issued, (ii) are fully paid paid, nonassessable and non-assessable, (iii) were issued in compliance with all applicable federal and state Laws concerning the issuance of securities and (iv) are free of preemptive rights. As of the date hereofMay 28, 2003, an aggregate of Thirty-One Million Nine Hundred Sixty-Six Thousand Two Hundred Sixty-Nine (i31,966,269) 11,175,648 shares of Common Stock Shares were reserved for issuance of which Twenty-Two Million Forty-Five Thousand Three Hundred and One (22,045,301) Shares were issuable upon or otherwise deliverable in connection with the exercise of outstanding Company Stock Options issued pursuant to the warrants (Company Plans. Between May 28, 2003 and the "WARRANTS") listed on Section 4.2 date hereof, no shares of the Company’s capital stock have been issued other than pursuant to the exercise of Company Disclosure Schedule, (ii) 4,166,670 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable Options already in connection with the conversion of outstanding shares of Series C Stock, (iii) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C-1 Stock, (iv) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C-2 Stock, (v) 6,944,450 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series D Stock, (vi) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series D-1 Stockexistence on such first date, and (vii) 4,778,000 shares of Common Stock were reserved for issuance between May 28, 2003 and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series E Stockdate hereof, no stock options have been granted. Except as set forth above and except for the stockholder rights (“Company Rights”) issued pursuant to that certain Preferred Stock Rights Agreement, dated as otherwise set forth on Section 4.2 of October 22, 2001, as amended, between the Company Disclosure Scheduleand Computershare Trust Company, Inc., as Rights Agent (the “Company Rights Agreement”), as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of the Company; , (ii) no securities of the Company or any of its subsidiaries Subsidiary convertible into or exchangeable for or exercisable for, shares of capital stock or other voting securities of the Company; Company or any Subsidiary, (iii) no options options, warrants or other rights to acquire from the Company or any of its subsidiariesSubsidiary, and no obligations of the Company or any of its subsidiaries Subsidiary to issue, issue any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other voting securities of the Company; Company or any Subsidiary, and (iv) no equity equivalents, equivalent interests in the ownership or earnings of the Company or any of its subsidiaries Subsidiary or other similar rights (including stock appreciation rights) (collectively, "COMPANY SECURITIES"). Except as set forth above and except as otherwise set forth on Section 4.2 All of the outstanding Shares and Company Disclosure ScheduleStock Options (collectively “Company Securities”) were issued in compliance with the Securities Act of 1933, as amended (the “Securities Act”), and applicable state securities laws. As of the date hereof, except with respect to the Restricted Company Shares, there are no outstanding rights or obligations of the Company or any of its subsidiaries Subsidiary to repurchase, redeem or otherwise acquire any outstanding shares of its capital stock or other ownership interests. Other than the Company Securities. There Voting Agreements, there are no stockholder agreements, voting trusts or other agreements arrangements or understandings to which the Company, the Company Board or any of its subsidiaries Subsidiary is a party party, and to the Company’s knowledge, there are no other agreements, voting trusts or to which it is bound other arrangements or understandings, relating to the voting or registration of any shares of capital stock or other voting securities of the Company or any Subsidiary. Other than treasury stock as described in the Financial Statements, no Shares, Company Preferred Stock or Company Stock Options are owned by the Company or any Subsidiary. The Company has provided to Parent a true and complete list of all holders of outstanding Restricted Company Shares or Company Stock Options, the exercise or vesting schedule, the exercise price per share, and the term of each Restricted Company Share or Company Stock Option, as applicable and in the case of Company Stock Options, whether such option is a nonqualified stock option or incentive stock option, and any restrictions on the Company’s right to repurchase of the Shares underlying the options, and whether or not, to the Company’s knowledge, an election under Section 83(b) of the Code is in effect with respect to such Shares that are Restricted Company Shares, in each case as of the date hereof. None of the terms of the Company Stock Options or Restricted Company Shares provides for accelerated vesting as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. Other than as disclosed in the Company’s SEC Reports filed on or before the date hereof, since the Company’s initial public offering, the Company has not granted Company Stock Options to employees or consultants under any Company Plan at an exercise price of less than the fair market value per Share at the time of grant as determined in good faith by the Company Board.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist Company consists of (i) 200,000,000 shares of Common Stock of which, as of the date hereof, 73,354,863 are issued and outstanding, Three Hundred Million (ii300,000,000) 205,000,000 shares of excess stock, par value $.01 per share ("EXCESS STOCK")Shares, of which, as of the date hereofMay 28, none are 2003, One Hundred Twenty-Two Million Four Hundred Twenty-Six Thousand Six Hundred Sixty-Four (122,426,664) Shares were issued and outstanding, (iii) 200 shares of voting senior preferred stock, par value $1.00 per share ("SENIOR PREFERRED STOCK"), of which, as of the date hereof, none are issued and outstanding, ; and (ivii) 5,000,000 Five Million (5,000,000) shares of preferred stock, par value $1.00 0.001 per share ("COMPANY PREFERRED STOCK"), none of which (A) 940,000 shares have been designated Series A cumulative redeemable preferred stock and of which, are outstanding as of the date hereof, 940,000 shares are . All of the outstanding Shares have been validly issued and outstanding, (B) 400,000 shares have been designated Series B Preferred Shares and of which, as of the date hereof, 270,000 shares are issued and outstanding, (C) 416,667 shares have been designated Series C cumulative convertible redeemable preferred stock ("SERIES C STOCK") and of which, as of the date hereof, 416,667 shares are issued and outstanding, (D) 138,889 shares have been designated Series C-1 cumulative convertible redeemable preferred stock ("SERIES C-1 STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (E) 138,889 shares have been designated Series C-2 cumulative convertible redeemable preferred stock ("SERIES C-2 STOCK", and, together with the Series C Stock and Series C-1 Stock, the "SC STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (F) 694,445 shares have been designated Series D cumulative convertible redeemable preferred stock ("SERIES D STOCK") and of which, as of the date hereof, 694,445 shares are issued and outstanding, (G) 138,889 shares have been designated Series D-1 cumulative convertible redeemable preferred stock ("SERIES D-1 STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (H) 477,778 shares have been designated Series E cumulative convertible redeemable preferred stock ("SERIES E STOCK") and of which, as of the date hereof, 477,778 shares are issued and outstanding, and (I) 107,483 shares have been designated Series F cumulative redeemable preferred stock and of which, as of the date hereof, no shares are issued and outstanding. All issued and outstanding shares of capital stock of the Company (i) have been duly authorized and validly issued, (ii) are fully paid paid, nonassessable and non-assessable, (iii) were issued in compliance with all applicable federal and state Laws concerning the issuance of securities and (iv) are free of preemptive rights. As of the date hereofMay 28, 2003, an aggregate of Thirty-One Million Nine Hundred Sixty-Six Thousand Two Hundred Sixty-Nine (i31,966,269) 11,175,648 shares of Common Stock Shares were reserved for issuance of which Twenty-Two Million Forty-Five Thousand Three Hundred and One (22,045,301) Shares were issuable upon or otherwise deliverable in connection with the exercise of outstanding Company Stock Options issued pursuant to the warrants (Company Plans. Between May 28, 2003 and the "WARRANTS") listed on Section 4.2 date hereof, no shares of the Company's capital stock have been issued other than pursuant to the exercise of Company Disclosure Schedule, (ii) 4,166,670 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable Options already in connection with the conversion of outstanding shares of Series C Stock, (iii) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C-1 Stock, (iv) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C-2 Stock, (v) 6,944,450 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series D Stock, (vi) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series D-1 Stockexistence on such first date, and (vii) 4,778,000 shares of Common Stock were reserved for issuance between May 28, 2003 and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series E Stockdate hereof, no stock options have been granted. Except as set forth above and except for the stockholder rights ("COMPANY RIGHTS") issued pursuant to that certain Preferred Stock Rights Agreement, dated as otherwise set forth on Section 4.2 of October 22, 2001, as amended, between the Company Disclosure Scheduleand Computershare Trust Company, Inc., as Rights Agent (the "COMPANY RIGHTS AGREEMENT"), as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of the Company; , (ii) no securities of the Company or any of its subsidiaries Subsidiary convertible into or exchangeable for or exercisable for, shares of capital stock or other voting securities of the Company; Company or any Subsidiary, (iii) no options options, warrants or other rights to acquire from the Company or any of its subsidiariesSubsidiary, and no obligations of the Company or any of its subsidiaries Subsidiary to issue, issue any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other voting securities of the Company; Company or any Subsidiary, and (iv) no equity equivalents, equivalent interests in the ownership or earnings of the Company or any of its subsidiaries Subsidiary or other similar rights rights. All of the outstanding Shares and Company Stock Options (including stock appreciation rights) (collectively, collectively "COMPANY SECURITIES") were issued in compliance with the Securities Act of 1933, as amended (the "SECURITIES ACT"), and applicable state securities laws. Except as set forth above and except as otherwise set forth on Section 4.2 As of the date hereof, except with respect to the Restricted Company Disclosure ScheduleShares, there are no outstanding rights or obligations of the Company or any of its subsidiaries Subsidiary to repurchase, redeem or otherwise acquire any outstanding shares of its capital stock or other ownership interests. Other than the Company Securities. There Voting Agreements, there are no stockholder agreements, voting trusts or other agreements arrangements or understandings to which the Company, the Company Board or any of its subsidiaries Subsidiary is a party party, and to the Company's knowledge, there are no other agreements, voting trusts or to which it is bound other arrangements or understandings, relating to the voting or registration of any shares of capital stock or other voting securities of the Company or any Subsidiary. Other than treasury stock as described in the Financial Statements, no Shares, Company Preferred Stock or Company Stock Options are owned by the Company or any Subsidiary. The Company has provided to Parent a true and complete list of all holders of outstanding Restricted Company Shares or Company Stock Options, the exercise or vesting schedule, the exercise price per share, and the term of each Restricted Company Share or Company Stock Option, as applicable and in the case of Company Stock Options, whether such option is a nonqualified stock option or incentive stock option, and any restrictions on the Company's right to repurchase of the Shares underlying the options, and whether or not, to the Company's knowledge, an election under Section 83(b) of the Code is in effect with respect to such Shares that are Restricted Company Shares, in each case as of the date hereof. None of the terms of the Company Stock Options or Restricted Company Shares provides for accelerated vesting as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. Other than as disclosed in the Company's SEC Reports filed on or before the date hereof, since the Company's initial public offering, the Company has not granted Company Stock Options to employees or consultants under any Company Plan at an exercise price of less than the fair market value per Share at the time of grant as determined in good faith by the Company Board.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist Company consists of (i) 200,000,000 25,000,000 shares of Common Stock of which, as of the date hereof, 73,354,863 are issued and outstanding, (ii) 205,000,000 shares of excess common stock, par value $.01 per share ("EXCESS STOCKCompany Common Stock"), of which, as of the date hereofApril 30, none are issued and outstanding1998, (iii) 200 approximately 11,666,438 shares of voting senior preferred stock, par value $1.00 per share ("SENIOR PREFERRED STOCK"), of which, as of the date hereof, none are were issued and outstanding, and (ivii) 5,000,000 10,000,000 shares of preferred stock, par value $1.00 .01 per share (the "PREFERRED STOCKCompany Preferred Stock"), 50,000 of which have been designated Convertible Preferred Stock Series 1997-A (Athe "Company Convertible Preferred") 940,000 shares and 300,000 of which have been designated Series A cumulative redeemable preferred stock and B Junior Participating Preferred Stock (the "Junior Preferred") and, of which, as of the date hereofApril 30, 940,000 1998, approximately 26,850 shares are of Company Convertible Preferred were issued and outstanding, (B) 400,000 shares have been designated Series B Preferred Shares outstanding and of which, as of the date hereof, 270,000 shares are issued and outstanding, (C) 416,667 shares have been designated Series C cumulative convertible redeemable preferred stock ("SERIES C STOCK") and of which, as of the date hereof, 416,667 shares are issued and outstanding, (D) 138,889 shares have been designated Series C-1 cumulative convertible redeemable preferred stock ("SERIES C-1 STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (E) 138,889 shares have been designated Series C-2 cumulative convertible redeemable preferred stock ("SERIES C-2 STOCK", and, together with the Series C Stock and Series C-1 Stock, the "SC STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (F) 694,445 shares have been designated Series D cumulative convertible redeemable preferred stock ("SERIES D STOCK") and of which, as of the date hereof, 694,445 shares are issued and outstanding, (G) 138,889 shares have been designated Series D-1 cumulative convertible redeemable preferred stock ("SERIES D-1 STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (H) 477,778 shares have been designated Series E cumulative convertible redeemable preferred stock ("SERIES E STOCK") and of which, as of the date hereof, 477,778 shares are issued and outstanding, and (I) 107,483 shares have been designated Series F cumulative redeemable preferred stock and of which, as of the date hereof, no shares are of Junior Preferred were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company (i) Common Stock and Company Preferred Stock have been duly authorized authorized, validly issued and validly issued, (ii) are fully paid paid, nonassessable and non-assessable, (iii) were issued in compliance with all applicable federal and state Laws concerning the issuance of securities and (iv) are free of preemptive rights. As of the date hereofApril 30, (i) 11,175,648 1998, approximately 4,457,528 shares of Company Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the exercise of outstanding Company Options issued pursuant to the warrants (the "WARRANTS"Company Stock Option Plans. Schedule 3.2(a) listed on Section 4.2 to this Agreement sets forth, as of the date hereof, (i) the Persons to whom Company Disclosure ScheduleOptions have been granted, (ii) 4,166,670 shares of Common Stock were reserved the exercise price for issuance the Company Options held by each such Person and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C Stock, (iii) 1,388,890 the number of vested and unvested Company Options. Except as disclosed in the Company Filed SEC Reports and as set forth on Schedule 3.2(a) to this Agreement, since April 1, 1998, no shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable the Company's capital stock have been issued other than pursuant to the exercise of Company Options already in connection with existence on such date, and, since April 1, 1998, no stock options have been granted by the conversion of outstanding shares of Series C-1 Stock, (iv) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C-2 Stock, (v) 6,944,450 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series D Stock, (vi) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series D-1 Stock, and (vii) 4,778,000 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series E StockCompany to any Person. Except as set forth above and except above, as otherwise set forth on Section 4.2 of Schedule 3.2(a) to this Agreement, or as contemplated in the Company Disclosure ScheduleRelated Transactions, as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of the Company; , (ii) no securities of the Company or any of its subsidiaries Company Subsidiary convertible into or exchangeable for shares of capital stock or voting securities of the Company; , (iii) no options options, warrants or other rights to acquire from the Company or any of its subsidiariesCompany Subsidiary, and no obligations of the Company or any of its subsidiaries Company Subsidiary to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company; and , (iv) no equity equivalents, interests in the ownership or earnings of the Company or any of its subsidiaries Company Subsidiary or other similar rights (including stock appreciation rights) (the items listed in subclauses (i), (ii), (iii) and (iv) being referred to, collectively, as "COMPANY SECURITIESCompany Securities"). Except as set forth above ) and except as otherwise set forth on Section 4.2 of the Company Disclosure Schedule, there are (v) no outstanding obligations of the Company or any of its subsidiaries Company Subsidiary to repurchase, redeem or otherwise acquire any Company Securities. There Except as set forth on Schedule 3.2(a) to this Agreement, there are no stockholder agreements, voting trusts or other agreements or understandings to which the Company or any of its subsidiaries is a party or to by which it is bound relating to the voting or registration of any shares of capital stock of the Company.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock Capital Stock of the Company, immediately prior to the Closing, will consist Company consists solely of (i) 200,000,000 331,900,000 shares of Common Stock, of which 23,267,988 are issued and outstanding as of the date hereof, (ii) 7,081,042 shares of Series A Preferred Stock, of which 7,081,042 are issued and outstanding as of the date hereof, (iii) 24,907,134 shares of Series B Preferred Stock, of which 24,907,134 are issued and outstanding as of the date hereof, (iv) 38,698,189 shares of Series B-1 Preferred Stock, of which 38,698,189 are issued and outstanding as of the date hereof, (v) 13,726,901 shares of Series B-2 Preferred Stock, of which 13,726,901 are issued and outstanding as of the date hereof, (vi) 51,377,889 shares of Series C Preferred Stock, of which 51,377,889 are issued and outstanding as of the date hereof, (vii) 37,177,122 shares of Series C-1 Preferred Stock, of which 36,900,369 are issued and outstanding as of the date hereof, (viii) 52,506,184 shares of Series D Preferred Stock, of which 47,824,830 are issued and outstanding as of the date hereof, (ix) 35,393,816 shares of Series D-1 Preferred Stock, of which 35,393,816 are issued and outstanding as of the date hereof, and (x) 9,500,000 shares of Series D-2 Preferred Stock, of which 1,378,713 are issued and outstanding as of the date hereof. The Company holds no treasury shares. As of the date hereof, there are no other issued and outstanding shares of Capital Stock and no outstanding commitments or Contracts to issue any shares of whichCapital Stock other than pursuant to the exercise of outstanding Company Options under the Company Stock Option Plans and the Company Warrants that are outstanding as of the date hereof. Schedule 4.2(a) of the Company Disclosure Schedules accurately sets forth, as of the date hereof, 73,354,863 are issued and outstanding, (ii) 205,000,000 shares of excess stock, par value $.01 per share ("EXCESS STOCK"), of which, as of the date hereof, none are issued and outstanding, (iii) 200 shares of voting senior preferred stock, par value $1.00 per share ("SENIOR PREFERRED STOCK"), of which, as of the date hereof, none are issued and outstanding, and (iv) 5,000,000 shares of preferred stock, par value $1.00 per share ("PREFERRED STOCK"), of which (A) 940,000 shares have been designated Series A cumulative redeemable preferred stock a true, correct and of which, as complete list of the date hereof, 940,000 Shareholders that are the registered owners of any shares are issued of Capital Stock and outstanding, the number and type of such shares so owned by such Shareholder and (B) 400,000 the number of shares have been designated Series B of Common Stock that would be owned by such Shareholder assuming conversion of all shares of Preferred Shares Stock so owned by such Person after giving effect to all anti-dilution and of which, as similar adjustments in accordance with the Governing Documents of the date hereofCompany or any Contract to which the Company is a party or by which the Company is bound. As of the Closing, 270,000 shares are all of the issued and outstanding, (C) 416,667 outstanding shares have been designated Series C cumulative convertible redeemable preferred stock ("SERIES C STOCK") of Capital Stock will be held of record by the Persons and of which, in such amounts as of set forth on the date hereof, 416,667 shares are issued and outstanding, (D) 138,889 shares have been designated Series C-1 cumulative convertible redeemable preferred stock ("SERIES C-1 STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (E) 138,889 shares have been designated Series C-2 cumulative convertible redeemable preferred stock ("SERIES C-2 STOCK", and, together with the Series C Stock and Series C-1 Stock, the "SC STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (F) 694,445 shares have been designated Series D cumulative convertible redeemable preferred stock ("SERIES D STOCK") and of which, as of the date hereof, 694,445 shares are issued and outstanding, (G) 138,889 shares have been designated Series D-1 cumulative convertible redeemable preferred stock ("SERIES D-1 STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (H) 477,778 shares have been designated Series E cumulative convertible redeemable preferred stock ("SERIES E STOCK") and of which, as of the date hereof, 477,778 shares are issued and outstanding, and (I) 107,483 shares have been designated Series F cumulative redeemable preferred stock and of which, as of the date hereof, no shares are issued and outstandingMerger Consideration Allocation Schedule. All issued and outstanding shares of capital stock of the Company (i) Capital Stock have been duly authorized and authorized, validly issued, (ii) are fully paid and non-assessable, (iii) were issued in compliance with all applicable federal assessable and state Laws concerning the issuance of securities and (iv) are free of any Liens, outstanding subscriptions, preemptive rights. As , rights of first refusal or “put” or “call” rights created by statute, the date hereof, (i) 11,175,648 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the exercise of the warrants (the "WARRANTS") listed on Section 4.2 of the Company Disclosure Schedule, (ii) 4,166,670 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C Stock, (iii) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C-1 Stock, (iv) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C-2 Stock, (v) 6,944,450 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series D Stock, (vi) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series D-1 Stock, and (vii) 4,778,000 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series E Stock. Except as set forth above and except as otherwise set forth on Section 4.2 of the Company Disclosure Schedule, as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of the Company; (ii) no securities Governing Documents of the Company or any of its subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company; (iii) no options or other rights Contract to acquire from which the Company is a party or any of its subsidiaries, and no obligations of the Company or any of its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company; and (iv) no equity equivalents, interests in the ownership or earnings of the Company or any of its subsidiaries or other similar rights (including stock appreciation rights) (collectively, "COMPANY SECURITIES"). Except as set forth above and except as otherwise set forth on Section 4.2 of the Company Disclosure Schedule, there are no outstanding obligations of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. There are no stockholder agreements, voting trusts or other agreements or understandings to by which the Company or any of its subsidiaries assets is bound. No shares of Capital Stock outstanding as of the date hereof are subject to any vesting requirements. The Company has never declared or paid any dividends on any shares of Capital Stock. There is no liability or obligation for dividends accrued and unpaid by the Company. The Company is not under any obligation to register under the Securities Act or the rules and regulations promulgated thereunder, any other Applicable Law or “blue sky” laws, any shares of Capital Stock, any equity interests or any other securities of the Company, whether currently outstanding or that may subsequently be issued. Except for shares of Series D-2 Preferred Stock, each share of Preferred Stock is convertible into shares of Common Stock on a one-for-one basis, and immediately prior to the Closing, all shares of Preferred Stock (other than shares of Series D-2 Preferred Stock) will be converted into shares of Common Stock in accordance with the Governing Documents of the Company in effect as of the date hereof. All issued and outstanding shares of Capital Stock and Company Options and Company Warrants were issued in compliance with all Applicable Law and all requirements set forth in the Governing Documents of the Company and any applicable Contracts to which the Company is a party or to by which it the Company or any of its assets is bound relating to bound. The Merger Consideration Allocation Schedule reflects an allocation and distribution of the voting of any shares of capital stock Merger Consideration in accordance with the Governing Documents of the Company.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist Company consists of (i) 200,000,000 shares of Common Stock of which, as of the date hereof, 73,354,863 are issued and outstanding, Three Hundred Million (ii300,000,000) 205,000,000 shares of excess stock, par value $.01 per share ("EXCESS STOCK")Shares, of which, as of the date hereofMay 28, none are 2003, One Hundred Twenty-Two Million Four Hundred Twenty-Six Thousand Six Hundred Sixty-Four (122,426,664) Shares were issued and outstanding, (iii) 200 shares of voting senior preferred stock, par value $1.00 per share ("SENIOR PREFERRED STOCK"), of which, as of the date hereof, none are issued and outstanding, ; and (ivii) 5,000,000 Five Million (5,000,000) shares of preferred stock, par value $1.00 0.001 per share ("COMPANY PREFERRED STOCK"), none of which (A) 940,000 shares have been designated Series A cumulative redeemable preferred stock and of which, are outstanding as of the date hereof, 940,000 shares are . All of the outstanding Shares have been validly issued and outstanding, (B) 400,000 shares have been designated Series B Preferred Shares and of which, as of the date hereof, 270,000 shares are issued and outstanding, (C) 416,667 shares have been designated Series C cumulative convertible redeemable preferred stock ("SERIES C STOCK") and of which, as of the date hereof, 416,667 shares are issued and outstanding, (D) 138,889 shares have been designated Series C-1 cumulative convertible redeemable preferred stock ("SERIES C-1 STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (E) 138,889 shares have been designated Series C-2 cumulative convertible redeemable preferred stock ("SERIES C-2 STOCK", and, together with the Series C Stock and Series C-1 Stock, the "SC STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (F) 694,445 shares have been designated Series D cumulative convertible redeemable preferred stock ("SERIES D STOCK") and of which, as of the date hereof, 694,445 shares are issued and outstanding, (G) 138,889 shares have been designated Series D-1 cumulative convertible redeemable preferred stock ("SERIES D-1 STOCK") and of which, as of the date hereof, 138,889 shares are issued and outstanding, (H) 477,778 shares have been designated Series E cumulative convertible redeemable preferred stock ("SERIES E STOCK") and of which, as of the date hereof, 477,778 shares are issued and outstanding, and (I) 107,483 shares have been designated Series F cumulative redeemable preferred stock and of which, as of the date hereof, no shares are issued and outstanding. All issued and outstanding shares of capital stock of the Company (i) have been duly authorized and validly issued, (ii) are fully paid paid, nonassessable and non-assessable, (iii) were issued in compliance with all applicable federal and state Laws concerning the issuance of securities and (iv) are free of preemptive rights. As of the date hereofMay 28, 2003, an aggregate of Thirty-One Million Nine Hundred Sixty-Six Thousand Two Hundred Sixty-Nine (i31,966,269) 11,175,648 shares of Common Stock Shares were reserved for issuance of which Twenty-Two Million Forty-Five Thousand Three Hundred and One (22,045,301) Shares were issuable upon or otherwise deliverable in connection with the exercise of outstanding Company Stock Options issued pursuant to the warrants (Company Plans. Between May 28, 2003 and the "WARRANTS") listed on Section 4.2 date hereof, no shares of the Company's capital stock have been issued other than pursuant to the exercise of Company Disclosure Schedule, (ii) 4,166,670 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable Options already in connection with the conversion of outstanding shares of Series C Stock, (iii) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C-1 Stock, (iv) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series C-2 Stock, (v) 6,944,450 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series D Stock, (vi) 1,388,890 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series D-1 Stockexistence on such first date, and (vii) 4,778,000 shares of Common Stock were reserved for issuance between May 28, 2003 and issuable upon or otherwise deliverable in connection with the conversion of outstanding shares of Series E Stockdate hereof, no stock options have been granted. Except as set forth above and except for the stockholder rights Company Rights issued pursuant to that certain Preferred Stock Rights Agreement, dated as otherwise set forth on Section 4.2 of October 22, 2001, as amended, between the Company Disclosure Scheduleand Computershare Trust Company, Inc., as Rights Agent (the "COMPANY RIGHTS AGREEMENT"), as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of the Company; , (ii) no securities of the Company or any of its subsidiaries Subsidiary convertible into or exchangeable for or exercisable for, shares of capital stock or other voting securities of the Company; Company or any Subsidiary, (iii) no options options, warrants or other rights to acquire from the Company or any of its subsidiariesSubsidiary, and no obligations of the Company or any of its subsidiaries Subsidiary to issue, issue any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other voting securities of the Company; Company or any Subsidiary, and (iv) no equity equivalents, equivalent interests in the ownership or earnings of the Company or any of its subsidiaries Subsidiary or other similar rights rights. All of the outstanding Shares and Company Stock Options (including stock appreciation rights) (collectively, collectively "COMPANY SECURITIES")) were issued in compliance with the Securities Act of 1933, as amended in the Securities Act, and applicable state securities laws. Except as set forth above and except as otherwise set forth on Section 4.2 As of the date hereof, except with respect to the Restricted Company Disclosure ScheduleShares, there are no outstanding rights or obligations of the Company or any of its subsidiaries Subsidiary to repurchase, redeem or otherwise acquire any outstanding shares of its capital stock or other ownership interests. Other than the Company Securities. There Voting Agreements, there are no stockholder agreements, voting trusts or other agreements arrangements or understandings to which the A-14 Company, the Company Board or any of its subsidiaries Subsidiary is a party party, and to the Company's knowledge, there are no other agreements, voting trusts or to which it is bound other arrangements or understandings, relating to the voting or registration of any shares of capital stock or other voting securities of the Company or any Subsidiary. Other than treasury stock as described in the Financial Statements, no Shares, Company Preferred Stock or Company Stock Options are owned by the Company or any Subsidiary. The Company has provided to Parent a true and complete list of all holders of outstanding Restricted Company Shares or Company Stock Options, the exercise or vesting schedule, the exercise price per share, and the term of each Restricted Company Share or Company Stock Option, as applicable and in the case of Company Stock Options, whether such option is a nonqualified stock option or incentive stock option, and any restrictions on the Company's right to repurchase of the Shares underlying the options, and whether or not, to the Company's knowledge, an election under Section 83(b) of the Code is in effect with respect to such Shares that are Restricted Company Shares, in each case as of the date hereof. None of the terms of the Company Stock Options or Restricted Company Shares provides for accelerated vesting as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. Other than as disclosed in the Company's SEC Reports filed on or before the date hereof, since the Company's initial public offering, the Company has not granted Company Stock Options to employees or consultants under any Company Plan at an exercise price of less than the fair market value per Share at the time of grant as determined in good faith by the Company Board.