Common use of Capitalization; Options Clause in Contracts

Capitalization; Options. (a) The Company is authorized to issue 250,000,000 shares of Common Stock, par value $0.00001 per share, 38,197,596 of which are issued and outstanding as of the date hereof, (“Common Stock”) and 25,000,000 shares of Series A Preferred Stock, none of which are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this Agreement). (b) All of the Purchase Shares when issued to the Buyer in accordance with the terms of this Agreement shall be legally and validly issued, fully paid and non-assessable, free and clear of all Liens. The shares of Common Stock issuable upon conversion of the Purchase Shares or the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liens. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company authorized or issued and outstanding. Except as set forth in the SEC Filings, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments or other instruments convertible into or exchangeable for shares of capital stock of the Company or any of the Company’s Subsidiaries, in each such case, to which the Company or any of Company’s Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock of the Company or of any of Company’s Subsidiaries (collectively, the “Company Instruments”). Except as set forth in the SEC Filings or as contemplated by this Agreement and the Transaction Documents, (i) the Company has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefrom.

Capitalization; Options. (a) The Company is authorized to issue 250,000,000 shares of Common Stock, par value $0.00001 per share, 38,197,596 38,366,244 of which are issued and outstanding as of the date hereof, (“Common Stock”) and 25,000,000 shares of Series A Preferred Stock, none 414,500 of which are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this Agreement). (b) All of the Purchase Shares when issued to the Buyer in accordance with the terms of this Agreement shall be legally and validly issued, fully paid and non-assessable, free and clear of all Liens. The shares of Common Stock issuable upon conversion of the Purchase Shares or the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liens. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company authorized or issued and outstanding. Except as set forth in the SEC Filings, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments or other instruments convertible into or exchangeable for shares of capital stock of the Company or any of the Company’s Subsidiaries, in each such case, to which the Company or any of Company’s Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock of the Company or of any of Company’s Subsidiaries (collectively, the “Company Instruments”). Except as set forth in the SEC Filings or as contemplated by this Agreement and the Transaction Documents, (i) the Company has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefrom.

Capitalization; Options. (a) The Company is authorized to issue 250,000,000 shares of Common Stock, par value $0.00001 per share, 38,197,596 of which are issued and outstanding as of the date hereof, (“"Common Stock”") and 25,000,000 shares of Series A Preferred Stock, none of which are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this Agreement). (b) All of the Purchase Shares when issued to the Buyer in accordance with the terms of this Agreement shall be legally and validly issued, fully paid and non-assessable, free and clear of all Liens. The shares of Common Stock issuable upon conversion of the Purchase Shares or the exercise of the Warrant (the “"Conversion Shares”") have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liens. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company authorized or issued and outstanding. Except as set forth in the SEC Filings, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments or other instruments convertible into or exchangeable for shares of capital stock of the Company or any of the Company’s 's Subsidiaries, in each such case, to which the Company or any of Company’s 's Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock of the Company or of any of Company’s 's Subsidiaries (collectively, the “"Company Instruments”"). Except as set forth in the SEC Filings or as contemplated by this Agreement and the Transaction Documents, (i) the Company has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s 's representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefrom.

Capitalization; Options. (a) The Company is Company’s authorized to issue 250,000,000 capital stock consists solely of 2,000,000,000 shares of Common Stock, par value $0.00001 0.001 per share, 38,197,596 and 20,000,000 shares of which are preferred stock, par value $0.001 per share (the “Preferred Stock”). As of the close of business on May 1, 2009 (the “Measurement Date”), (i) 7,667,368 shares of Common Stock were issued and outstanding and no shares of Preferred Stock were issued or outstanding, (ii) there were issued and outstanding pursuant to the Company’s stock award plans (the “Company Stock Award Plans”), Stock Options representing the right to acquire an aggregate of 109,389 shares of Common Stock for a per share exercise price that is less than the Merger Consideration and (iii) there were Warrants to purchase 250,764 shares of Common Stock. No Shares are held in the treasury of the Company or are owned by any of the Company’s Subsidiaries. Since the Measurement Date, other than in connection with the issuance of Shares pursuant to the exercise of Stock Options or Warrants outstanding as of the date hereofMeasurement Date, (“Common Stock”) and 25,000,000 shares or the issuance of Series A Preferred Stock, none of which are issued and outstanding Stock Options pursuant to Company Benefit Plans as in existence as of the date hereof (prior to giving effect Measurement Date, there has been no change in the number of outstanding shares of capital stock of the Company or the number of outstanding Stock Options. Section 4.3(a) of the Company Disclosure Letter sets forth for each Stock Option, issued or outstanding pursuant to the transactions contemplated by Company Stock Award Plans or otherwise, the number of Stock Options, the number of shares of Common Stock issuable thereunder and exercise or conversion price relating thereto. Except as set forth in this Section 4.3, there are no shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company or such securities or other rights (which term, for purposes of this Agreement, will be deemed to include “phantom” stock or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights). (b) All of outstanding Shares are, and all shares reserved for issuance under the Purchase Shares Company Stock Award Plans will be, when issued to the Buyer in accordance with the terms of this Agreement shall be legally and thereof, duly authorized, validly issued, fully paid and non-assessable, free assessable and clear of all Liens. The shares of Common Stock issuable upon conversion of the Purchase Shares are not subject to any pre-emptive or the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liensother similar rights. (c) Other than Except for the Common Warrants, the Stock and the Series A Preferred Stock, there are no other series Options or classes of capital stock of the Company authorized or issued and outstanding. Except as set forth in the SEC Filingsthis Section 4.3, there are no outstanding warrantscontractual obligations of the Company or any of its Subsidiaries (i) to issue, optionssell, contractsor otherwise transfer to any Person, rights (preemptive or otherwise)to repurchase, callsredeem or otherwise acquire from any Person, commitments any Shares, Preferred Stock, capital stock of any Subsidiary of the Company, or securities or other instruments rights convertible or exchangeable into or exchangeable exercisable for shares of capital stock of the Company or any of the Company’s Subsidiaries, in each such case, to which the Company or any of Company’s Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock Subsidiary of the Company or of any of Company’s Subsidiaries (collectively, the “Company Instruments”). Except as set forth in the SEC Filings such securities or as contemplated by this Agreement and the Transaction Documents, (i) the Company has not agreed to register any shares of its capital stock under the Securities Act other rights or granted registration rights with respect to shares of its capital stock to any Person and (ii) there to provide any funds to or make any investment in any other Person other than a wholly owned Subsidiary of the Company. (d) There are no voting trusts, stockholders stockholder agreements, proxies voting trusts or other agreements or understandings in effect to which the Company is a party with respect to the voting voting, registration, redemption, repurchase or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price disposition of, or number that restricts the transfer of, any capital stock or other equity interest of shares issuable upon the exercise or conversion of any such, Company InstrumentsCompany. (de) The outstanding shares of Common Stock are all duly and validly authorized and issuedExcept for the capital stock of, fully paid and nonassessable. All outstanding Common Stockor other equity or voting interests in, options and its Subsidiaries, the Company does not own, directly or indirectly, any equity, membership interest, partnership interest, joint venture interest, or other securities equity or voting interest in, or any interest convertible into, exercisable or exchangeable for any of the Company were issued in accordance with the registration foregoing, nor is it under any current or qualification provisions of the Securities Act and prospective obligation to form or participate in, provide funds to, or make any relevant state securities laws (includingloan, without limitationcapital contribution, anti-fraud provisions) orguarantee or other investment in, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefromany Person other than Subsidiaries.

Capitalization; Options. (a) The Company is Company’s authorized capital stock consists solely of 80,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”). As of the close of business on June 16, 2008 (the “Measurement Date”), (i) 35,163,367 shares of Common Stock were issued and outstanding, of which 356,175 were Restricted Shares, and no shares of Preferred Stock were issued or outstanding and (ii) there were available for grant pursuant to issue 250,000,000 the Equity Incentive Plans, Stock Options representing an aggregate of 1,013,617 shares of Common Stock. No Shares are held in the treasury of the Company or by any of its Subsidiaries. Since the Measurement Date, par value $0.00001 per shareother than in connection with the issuance of Shares pursuant to the exercise of Stock Options outstanding as of the Measurement Date, 38,197,596 there has been no change in the number of which are outstanding shares of capital stock of the Company or the number of outstanding Stock Options. Section 4.3(a) of the Company Disclosure Letter sets forth (w) for each Stock Option issued or outstanding pursuant to the Equity Incentive Plans or otherwise, the number of Stock Options, the number of shares of Common Stock issuable thereunder and the exercise or conversion price relating thereto, (x) for each Restricted Share issued or outstanding pursuant to the Equity Incentive Plans, the purchase price, (y) the aggregate number of Stock Options and Restricted Shares issued and outstanding as of the Measurement Date and the weighted average exercise price of the issued and outstanding Stock Options, and (z) the maximum number of shares of Common Stock that will be purchased pursuant to the ESPP after giving effect to Section 1.5(c) above. Except as set forth in this Section 4.3, there are no shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company or such securities or other rights (which term, for purposes of this Agreement, shall be deemed to include “phantom” stock or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights). Since the Measurement Date, there have been no issuances of any securities of the Company or any of its Subsidiaries that would have been in breach of Section 6.1(c) if made after the date hereofof this Agreement. The Company has no rights plan, (“poison-pill” or other similar agreement or arrangement or any anti-takeover provision in the Company Organizational Documents that is, or at the Effective Time shall be, applicable to the Company, the Common Stock”) and 25,000,000 shares of Series A , the Preferred Stock, none of which are issued and outstanding as of the date hereof (prior to giving effect to Merger or the other transactions contemplated by this Agreement). (b) All of the Purchase outstanding Shares when issued to the Buyer in accordance with the terms of this Agreement shall be legally and are duly authorized, validly issued, fully paid and non-assessable, free assessable and clear of all Liens. The shares of Common Stock issuable upon conversion of the Purchase Shares are not subject to any pre-emptive or the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liensother similar rights. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock Section 4.3(c) of the Company authorized Disclosure Letter sets forth each Equity Incentive Plan and the Company has furnished to Purchaser correct and complete copies of each Equity Incentive Plan and all forms of options and other stock-based awards issued under those Equity Incentive Plan. There are no Equity Incentive Plans except as set forth in Section 4.3(c) of the Company Disclosure Letter nor are there any phantom stock obligations, stock appreciation rights, or issued similar obligations payable in cash and outstanding. based on the stock price of the Shares. (d) Except as set forth in the SEC Filingsthis Section 4.3, there are no outstanding warrantscontractual obligations of the Company or any of its Subsidiaries (i) to issue, optionssell, contractsor otherwise transfer to any Person, rights (preemptive or otherwise)to repurchase, callsredeem or otherwise acquire from any Person, commitments any Shares, Preferred Stock, capital stock of any Subsidiary of the Company, or securities or other instruments rights convertible or exchangeable into or exchangeable exercisable for shares of capital stock of the Company or any Subsidiary of the Company or such securities or other rights, (ii) to provide any funds to or make any investment in (A) any Subsidiary of the Company that is not wholly-owned by the Company or (B) any other Person or (iii) register any securities under the Securities Act. (e) The Company has not declared or paid any dividend or distribution in respect of any of the Company’s Subsidiariessecurities, in each such caseand neither the Company nor any Subsidiary has issued, sold, repurchased, redeemed or otherwise acquired any of the Company’s securities, and their respective boards of directors have not authorized any of the foregoing. (f) Neither the Company nor any Subsidiary has entered into any commitment, arrangement or agreement, or is otherwise obligated, to which the Company contribute capital, loan money or otherwise provide funds or make additional investments in any of Company’s Subsidiaries is a party and which relates Person. (g) With respect to the sale or issuance of shares of capital stock of the Company or of any of Company’s Subsidiaries (collectively, the “Company Instruments”). Except as set forth in the SEC Filings or as contemplated by this Agreement Stock Options and the Transaction DocumentsRestricted Shares, (i) each grant of a Stock Option or Restricted Share was duly authorized no later than the date on which the grant of such Stock Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the board of directors of the Company, or a committee thereof, or a duly authorized delegate thereof, and any required approval by the stockholders of the Company has not agreed to register any shares by the necessary number of its capital stock under votes or written consents, and the Securities Act or granted registration rights with respect to shares of its capital stock to any Person award agreement governing such grant, if any, was duly executed and delivered by each party thereto within a reasonable time following the Grant Date, (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any each such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued grant was made in accordance with the registration or qualification provisions terms of the Securities applicable Equity Incentive Plan, the Exchange Act and any relevant state securities laws all other applicable Law, including the rules of NASDAQ, (including, without limitation, anti-fraud provisionsiii) or, subject in part to the truth and accuracy per share exercise price of each purchaser’s representations to Stock Option was not less than the fair market value of a share of Common Stock on the applicable Grant Date, and (iv) each such grant was properly accounted for in all material respects in accordance with GAAP in the financial statements (including the related notes) of the Company at and disclosed in the time Company SEC Documents in accordance with the Exchange Act and all other applicable Laws. (h) As of May 31, 2008, the purchase thereofCompany and its Subsidiaries, pursuant to valid exemptions therefromtaken as a whole, had cash and cash equivalents of $ 23,259,512 and indebtedness for borrowed money outstanding of $ 231,139.

Capitalization; Options. (a) The Company is authorized to issue 250,000,000 shares of Common Stock, par value $0.00001 per share, 38,197,596 75,618,059 of which are issued and outstanding as of the date hereof, (“Common Stock”) and 25,000,000 shares of Series A Preferred Stock, none 901,237 of which the Series A are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this Agreement). (b) All of the Purchase Shares when issued to the Buyer in accordance with the terms of this Agreement shall be legally and validly issued, fully paid and non-assessable, free and clear of all Liens. The shares of Common Stock issuable upon conversion of the Purchase Shares or the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liens. (c) Other than the Common Stock Stock, the Series A Preferred and the Series A B Preferred Stock, there are no other series or classes of capital stock of the Company authorized or issued and outstanding. Except as set forth in the SEC Filings, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments or other instruments convertible into or exchangeable for shares of capital stock of the Company or any of the Company’s Subsidiaries, in each such case, to which the Company or any of Company’s Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock of the Company or of any of Company’s Subsidiaries (collectively, the “Company Instruments”). Except as set forth in the SEC Filings or as contemplated by this Agreement and the Transaction Documents, (i) the Company has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefrom.

Capitalization; Options. (a) The Holding Company’s authorized capital stock consists solely of Five Million (5,000,000) shares of Common Stock and One Million (1,000,000) shares of preferred stock, par value $0.01 per share (the “Preferred Stock”). The entire issued and outstanding capital stock of the Holding Company is authorized to issue 250,000,000 (of whatever class, series or designation) consists of Two Million Three Hundred Fifty-Two Thousand Nine Hundred Forty-One (2,352,941) shares of Common Stock, par value $0.00001 per share, 38,197,596 of which are and the entire issued and outstanding as capital stock of the date hereofOperating Company (of whatever class, series or designation) consists of Fourteen Million One Hundred Seventeen Thousand Six Hundred Ninety-Seven (14,117,697) Units, all of which shares or membership interests, as the case may be, are duly authorized, validly issued and outstanding, fully paid and nonassessable. The Subject Shares are all of the shares of Common Stock issued and outstanding. No shares of Preferred Stock are issued or outstanding. The Units owned by the Holding Company (the “Common StockSubject Units”) and 25,000,000 shares are all of Series A Preferred Stock, none of which are the Units issued and outstanding as outstanding. Neither the Subject Shares nor the Subject Units are subject to, nor issued in violation of, any preemptive or subscription rights, or rights of the date hereof (prior to giving effect to the transactions contemplated by this Agreement)first refusal. (b) All There are no stock/membership interest award plans of the Purchase Shares when issued Company. There are no outstanding or authorized warrants, options, agreements, subscriptions, rights, calls, puts, conversion rights, convertible or exchangeable securities or other Contracts pursuant to which the Company is or may become obligated or which are binding upon the Company to issue, sell, purchase, retire or redeem any shares of capital stock or other securities of the Company. There are no outstanding or authorized stock appreciation, phantom stock or similar rights with respect to the Buyer in accordance Company. There are no voting trusts, proxies or any other agreements or understandings with respect to the terms of this Agreement shall be legally and validly issued, fully paid and non-assessable, free and clear of all Liens. The shares of Common Stock issuable upon conversion voting of the Purchase Shares or the exercise capital stock of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all LiensCompany. (c) Other than All of the issued and outstanding shares of Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company authorized or Units have been issued and outstanding. Except as set forth in the SEC Filings, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments or other instruments convertible into or exchangeable for shares of capital stock of the Company or any of the Company’s Subsidiaries, in each such case, to which the Company or any of Company’s Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock of the Company or of any of Company’s Subsidiaries (collectively, the “Company Instruments”). Except as set forth in the SEC Filings or as contemplated by this Agreement and the Transaction Documents, (i) the Company has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights compliance with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instrumentsall Legal Requirements. (d) The outstanding shares of Common Stock are all duly and validly authorized and issuedCompany has not entered into any commitment, fully paid and nonassessable. All outstanding Common Stockarrangement or agreement, options and other securities of the Company were issued or is otherwise obligated, to contribute capital, loan money or otherwise provide funds or make additional investments in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefromPerson.

Capitalization; Options. (a) The Seller Disclosure Schedule sets forth for the Company is and each Subsidiary the amount of its authorized to issue 250,000,000 capital stock, the amount of its outstanding capital stock and the shareholders of record in respect of its outstanding capital stock. All the outstanding shares of Common Stock, par value $0.00001 per share, 38,197,596 capital stock of which are the Company and each Subsidiary have been duly authorized and validly issued and outstanding as of the date hereof, (“Common Stock”) and 25,000,000 shares of Series A Preferred Stock, none of which are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this Agreement). (b) All of the Purchase Shares when issued to the Buyer in accordance with the terms of this Agreement shall be legally and validly issued, fully paid and non-assessable, free and clear of all Liens. The shares , other than pledges set forth in the Seller Disclosure Schedule, each of Common Stock issuable upon conversion of which will be fully released as at the Purchase Shares or the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liens. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company authorized or issued and outstandingClosing. Except as set forth in on the SEC FilingsSeller Disclosure Schedule, there are no outstanding subscriptions, warrants, options, contracts, rights (preemptive or otherwise), calls, demands or commitments of any character binding on the Company or other instruments convertible into any Subsidiary relating to any authorized and issued or exchangeable for unissued shares of capital stock of the Company or any of the Company’s SubsidiariesSubsidiary, in each such case, to which or other instruments binding on the Company or any Subsidiary convertible into or exchangeable for such stock, or which obligate the Company or any Subsidiary to seek authorization to issue additional shares of Company’s Subsidiaries is a party and which relates to any class of stock, nor will any be created by virtue of this Agreement or the sale Related Agreements or issuance the transactions contemplated hereby or by the Related Agreements. Upon conversion of the Convertible Notes, the Purchase Shares will constitute all of the outstanding shares of capital stock of the Company or Company. The GR Shares constitute all of any the outstanding shares of capital stock of Grand River which are not owned by the Company’s Subsidiaries (collectively, and upon completion of the transactions under the Redemption Agreement, the “Company Instruments”). Except as set forth in the SEC Filings or as contemplated 10 common shares of Grand River owned by this Agreement and the Transaction Documents, (i) the Company has not agreed to register any will constitute all of the issued and outstanding shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common StockGrand River. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale None of the Purchase Shares nor or the issuance shares of capital stock of any Subsidiary were (or, with respect to Purchase Shares to be issued upon conversion of the Conversion Shares Convertible Notes, will be) issued in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion violation of any such, Company Instrumentsapplicable Laws. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefrom.

Capitalization; Options. (a) The Company is authorized to issue 250,000,000 50,000,000 shares of Common Stock, par value $0.00001 per share, 38,197,596 of which are issued and outstanding as of the date hereof, (“Common Stock”) and 25,000,000 shares of Series A Preferred Stock, none 5,600,000 of which are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this Agreement)) ("Common Stock") and 1,000,000 shares of Preferred Stock, 300,000 of which, denominated Series A Convertible Preferred Stock, are issued and outstanding as of the date hereof. (b) All of the Purchase Shares when issued to the Buyer Buyers in accordance with the terms of this Agreement shall be legally and validly issued, fully paid and non-assessable, free and clear of all Liens. The shares of Common Stock issuable upon conversion of the Purchase Shares or the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liens. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company authorized or issued and outstanding. Except as set forth in on Section 3.6(c) of the SEC FilingsCompany Disclosure Schedule, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments or other instruments convertible into or exchangeable for shares of capital stock of the Company or any of the Company’s 's Subsidiaries, in each such case, to which the Company or any of Company’s 's Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock of the Company or of any of Company’s 's Subsidiaries (collectively, the “"Company Instruments”)") As of the date hereof, there are 9,800,000 shares of Common Stock reserved on the Company's books and records for issuance upon exercise of redeemable warrants and an option held by the underwriter of the Company's initial public offering. The Company has also agreed to reserve and keep available out of its authorized but unissued shares of Common Stock such number of shares of Common Stock as shall from time to time be sufficient to effect a conversion of all outstanding shares of Series A Convertible Preferred Stock. Except as set forth in on Section 3.6(c) of the SEC Filings Company Disclosure Schedule or as contemplated by this Agreement and the Transaction Documents, (i) the Company has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as set forth on Section 3.6(c) of the date hereofCompany Disclosure Schedule, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will not result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s 's representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefrom.

Capitalization; Options. (a) The authorized capital stock of the Company is authorized to issue 250,000,000 consists of 5,000,000 shares of preferred stock, par value of $.001 per share, of which 1,200 shares has been designated Series A Convertible Preferred Stock, 1,000 shares of which are issued and outstanding; 40,000,000 shares of Common Stock, par value of $0.00001 .001 per share, 38,197,596 346,026 shares of which are issued and outstanding as of the date hereof, (“Common Stock”) and 25,000,000 outstanding; 4,000,000 shares of Series A Preferred B Common Stock, none par value $.001 per share, 800,000 shares of which are issued and outstanding outstanding; 62,500 shares of Company Common Stock underlie options granted pursuant to the 2005 Stock Option Plan; 101,000 shares of Company Common Stock underlie options granted pursuant to the 2006 Stock Option Plan. Except as set forth in this Section 3.5(a), no shares or classes of the date hereof (prior to giving effect to the transactions contemplated by this Agreement)Company’s capital stock are issued, outstanding or reserved for issuance. (b) All The authorized capital stock of each Subsidiary and the number of issued and outstanding shares is set forth on Section 3.5(b) of the Purchase Shares when issued to Company Disclosure Schedule. All the Buyer in accordance with outstanding shares of capital stock of the terms of this Agreement shall be legally Company and each Subsidiary have been duly authorized and validly issued, issued and are fully paid and non-assessable, free and clear of all Liens. The shares of Common Stock issuable upon conversion of rights, preferences, privileges and restrictions applicable to the Purchase Shares or Company’s capital stock are as set forth in the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Company’s currently effective Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liens. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company authorized or issued and outstandingIncorporation. Except as set forth in the SEC FilingsSection 3.5(a) above, there are no outstanding subscriptions, warrants, options, contracts, rights (preemptive or otherwise), calls, commitments demands, commitments, voting agreements, voting trusts proxies or other instruments convertible into arrangements of any character binding on the Company or exchangeable for any Subsidiary relating to any authorized and issued or unissued shares of capital stock of the Company or any of the Company’s SubsidiariesSubsidiary, in each such case, to which or other instruments binding on the Company or any Subsidiary convertible into or exchangeable for such stock, or which obligate the Company or any Subsidiary to seek authorization to issue additional shares of Company’s Subsidiaries is a party and which relates to any class of stock, nor will any be created by virtue of this Agreement or the sale or issuance transactions contemplated hereby. None of the shares of capital stock of the Company or of any of Company’s Subsidiaries (collectively, the “Company Instruments”). Except as set forth in the SEC Filings or as contemplated by this Agreement and the Transaction Documents, (i) the Company has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company Subsidiary were issued in accordance with the registration or qualification provisions violation of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefromapplicable Laws.

Capitalization; Options. (a) The Company is authorized to issue 250,000,000 75,000,000 shares of Common Stock, par value $0.00001 per share, 38,197,596 15,220,817 of which are issued and outstanding as of the date hereof, (“Common Stock”) and 25,000,000 1,000,000 shares of Series A Preferred Stock, none of which are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this Agreement). (b) All of the Purchase Shares when issued to the Buyer Buyers in accordance with the terms of this Agreement shall be legally and validly issued, fully paid and non-assessable, free and clear of all Liens. The shares of Common Stock issuable upon conversion of the Purchase Shares or the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liens. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company authorized or issued and outstanding. Except as set forth in on Section 3.6(c) of the SEC FilingsCompany Disclosure Schedule, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments or other instruments convertible into or exchangeable for shares of capital stock of the Company or any of the Company’s Subsidiaries, in each such case, to which the Company or any of Company’s Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock of the Company or of any of Company’s Subsidiaries (collectively, the “Company Instruments”)) As of the date hereof, there are (i) 14,146,000 shares of Common Stock reserved on the Company’s books and records for issuance upon exercise of redeemable warrants and an option held by the underwriter of the Company’s initial public offering, (ii) 150,000 shares of Common Stock reserved on the Company’s books and records for issuance upon the exercise of stock options issued to members of the Company’s board of directors and (iii) there are 214,000 shares of restricted common stock, issued pursuant to the Company’s 2006 Long-Term Incentive Plan, issued and outstanding in the name of Company officers and employees. Except as set forth in on Section 3.6(c) of the SEC Filings Company Disclosure Schedule or as contemplated by this Agreement and the Transaction Documents, : (i) the Company has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefrom.

Capitalization; Options. (a) The Company is Company's authorized to issue 250,000,000 capital stock consists solely of 50,000,000 shares of Common StockStock and 1,000,000 shares of Preferred Stock (the "PREFERRED STOCK"), par value $0.00001 per share, 38,197,596 of which 2,500 shares of Preferred Stock are designated as Class A Preferred Stock and 500,000 shares of Preferred Stock are designated as Series B Convertible Preferred Stock. As of the close of business on October 31, 2006 (the "MEASUREMENT DATE"), 21,780,467 shares of Common Stock were issued and outstanding. No shares of Preferred Stock are issued and or outstanding. As of the Measurement Date, no Shares are held in the treasury of the Company. Since the Measurement Date until the date of this Agreement, other than in connection with the issuance of Shares pursuant to the exercise of Stock Options outstanding as of the date hereofMeasurement Date, (“Common Stock”) and 25,000,000 there has been no change in the number of outstanding shares of Series A Preferred Stockcapital stock of the Company or the number of outstanding Stock Options. As of the Measurement Date, none Stock Options to purchase 2,653,390 shares of which Common Stock were outstanding, with a weighted average exercise price of $9.26 per share. Section 4.3(a) of the Company Disclosure Letter sets forth a complete and correct list of all Stock Options that are issued and outstanding as of the date hereof (prior to giving effect Measurement Date, the exercise price of each such Stock Option, and with respect to the transactions contemplated Persons specified thereon, the number of Stock Options held by each such Person and the exercise prices thereof. Except as set forth in this Section 4.3, there are no shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company or such securities or other rights (which term, for purposes of this Agreement, will be deemed to include "phantom" stock, stock appreciation rights, or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights). Since the Measurement Date through the date of this Agreement, there have been no issuances of any securities of the Company or any of its Subsidiaries that would have been in breach of Section 6.1 if made after the date of this Agreement. (b) All of the Purchase outstanding Shares when issued to the Buyer in accordance with the terms of this Agreement shall be legally and are duly authorized, validly issued, fully paid and non-assessable, free assessable and clear of all Liens. The shares of Common Stock issuable upon conversion of the Purchase Shares or the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liensare not subject to any pre-emptive rights. (c) Other than There are no outstanding contractual obligations of the Common Stock and the Series A Company or any of its Subsidiaries (i) to issue, sell, or otherwise transfer to any Person, or to repurchase, redeem or otherwise acquire from any Person, any Shares, Preferred Stock, there are no other series or classes of capital stock of any Subsidiary of the Company authorized Company, or issued and outstanding. Except as set forth in the SEC Filings, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments securities or other instruments rights convertible or exchangeable into or exchangeable exercisable for shares of capital stock of the Company or any of the Company’s Subsidiaries, in each such case, to which the Company or any of Company’s Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock Subsidiary of the Company or such securities or other rights or (ii) to provide any funds to or make any investment in any Subsidiary of the Company that is not wholly owned by the Company. (d) Other than the issuance of Shares upon exercise of Stock Options and other than previously announced regular quarterly dividends, since January 1, 2006 and through the date of this Agreement, the Company has not declared or paid any dividend or distribution in respect of any of the Company’s Subsidiaries 's securities. (collectivelye) Each Company Benefit Plan providing for the grant of Shares or of awards denominated in, the “Company Instruments”). Except as or otherwise measured by reference to, Shares (each, a "COMPANY STOCK AWARD PLAN") is set forth (and identified as a Company Stock Award Plan) in Section 4.13(a) of the Company Disclosure Letter. The Company has provided to Parent correct and complete copies of all Company Stock Award Plans and all forms of options and other stock-based awards (including award agreements) issued under such Company Stock Award Plans. (f) As of the date of this Agreement, neither the Company nor any Subsidiary has entered into any commitment, arrangement or agreement, or is otherwise obligated, to contribute capital, loan money or otherwise provide funds or make additional investments in any Person other than any such commitments, arrangements, or agreements in the SEC Filings ordinary course of business consistent with past practice, and other than pursuant to Material Contracts. (g) The maximum number of Shares authorized for issuance pursuant to the ESPP is 1,000,000. Not more than 10,000 Shares will be issuable pursuant to the ESPP with respect to the current Purchase Interval which is scheduled to end on December 31, 2006. With respect to any subsequent Purchase Interval and until the Effective Time, (i) not more than 10,000 Shares will be issuable pursuant to the ESPP during such Purchase Interval and (ii) the total amount of all contributions by participants to their respective participant accounts during any 30-day period during such Purchase Interval shall not exceed the dollar amount that, when applied to the purchase of Shares under the ESPP on the Purchase Date (as defined in the ESPP) or as contemplated by New Purchase Date with respect to such Purchase Interval, would result in the purchase of a total of 3,333 Shares under the ESPP. (h) As of the date of this Agreement and the Transaction DocumentsAgreement, (i) the Company has not agreed and its Subsidiaries owe $40 million pursuant to register any shares of its capital stock outstanding borrowings under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and Credit Facility, (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the maximum amount of additional borrowings possible under the Credit Facility is $55 million and (iii) neither the Company is a party with respect to the voting nor any Subsidiary has any other indebtedness for borrowed money or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instrumentsguarantees thereof. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefrom.

Capitalization; Options. (a) The Company Seller is authorized to issue 250,000,000 50,000,000 shares of Common Stock, par value $0.00001 per share, 38,197,596 of which are issued and outstanding as of the date hereof, (“Common Stock”) and 25,000,000 shares of Series A Preferred Stock, none 8,055,619 of which are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this Agreement), and 2,000,000 shares of preferred stock, par value $0.01 ("Preferred Stock"), of which none are issued and outstanding as of the date hereof. (b) All of the Purchase Shares when issued to the Buyer in accordance with the terms of this Agreement shall be legally and validly issued, fully paid and non-assessable, free and clear of all LiensLiens other than transfer restrictions provided under the Securities Act and comparable state securities laws. The shares Warrant when issued to Buyer in accordance with the terms of Common Stock issuable upon conversion this Agreement shall be legally and validly issued, free and clear of all Liens other than transfer restrictions provided under the Securities Act and comparable state securities laws and other than as provided by the terms of the Purchase Warrant. The Warrant Shares or the when issued upon exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company andWarrant, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental RulesWarrant, shall be legally and validly issued, fully paid and nonassessable, free and clear of all LiensLiens other than as provided under the Securities Act and comparable state securities laws. The Seller has reserved for issuance the Warrant Shares on the Seller's books and records upon exercise of the Warrant in accordance with their terms. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company Seller authorized or issued and outstanding. Except as set forth disclosed in the Seller Disclosure Schedule or except as disclosed in the SEC FilingsReports or any exhibit thereto, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments or other instruments convertible into or exchangeable for shares of capital stock of the Company Seller or any of the Company’s Seller's Subsidiaries, in each such case, to which the Company Seller or any of Company’s Seller's Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock of the Company Seller or of any of Company’s Seller's Subsidiaries (collectively, the “Company "Seller Instruments”"). As of the date hereof, there are 1,500,000 shares of Common Stock reserved on the Seller's books and records for issuance pursuant to the Seller's 1999 Stock Option Plan (included as an exhibit to the Seller's Definitive Proxy Statement dated March 31, 1999). Except as set forth on the Seller Disclosure Schedule, as disclosed in the SEC Filings Reports or any exhibit thereto or as contemplated by this Agreement and the Transaction Documents, (i) the Company Seller has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company Seller is a party with respect to the voting or transfer of any shares of Common Stock. Except as set forth on the Seller Disclosure Schedule or as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Seller Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares or the Warrant nor the issuance of any Warrant Shares upon the Conversion Shares exercise of the Warrant in accordance with its their terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Seller Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefrom.

Capitalization; Options. (a) The authorized capital stock of the Company is authorized to issue 250,000,000 consists of 100,000 shares of Company Common Stock, par value $0.00001 per share, 38,197,596 of which 36,202 shares are issued and outstanding and held by the Company Stockholders in the amounts listed on the Company Disclosure Letter. Except as set forth in this Section 4.6(a), no shares of the date hereofCompany’s capital stock are issued, (“Common Stock”) and 25,000,000 shares of Series A Preferred Stock, none of which are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this Agreement)or reserved for issuance. (b) All 100% of the Purchase Shares when aggregate limited liability company interests in the Subsidiary are owned beneficially and of record by the Company. There are no other classes of equity securities of the Subsidiary issued to or outstanding, nor are any such equity securities reserved for issuance. (c) All the Buyer outstanding shares of capital stock of the Company and interests in accordance with the terms of this Agreement shall be legally Subsidiary have been duly authorized and validly issued, issued and are fully paid and non-assessable, free and clear of all Liens. The shares rights, preferences, privileges and restrictions applicable to the Company’s capital stock are as set forth in the Company’s currently effective Articles of Common Stock issuable upon conversion of Incorporation, as amended, and in the Purchase Shares or the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of Agreement with Respect to Stock, dated February 1, 1994, among the Company andStockholders, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liens. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company authorized or issued and outstandingas amended. Except as set forth in the SEC Filingsthis Section 4.6, there are no outstanding subscriptions, warrants, options, contracts, rights (preemptive or otherwise), calls, commitments demands, commitments, voting agreements, voting trusts proxies or other instruments convertible into arrangements of any character binding on the Company or exchangeable for the Subsidiary relating to any authorized and issued or unissued shares of capital stock of the Company or any of interests in the Company’s SubsidiariesSubsidiary, in each such case, to which or other instruments binding on the Company or the Subsidiary convertible into or exchangeable for such stock or interests, or which obligate the Company or the Subsidiary to seek authorization to issue additional equity securities or interests, nor will any be created by virtue of Company’s Subsidiaries is a party and which relates to this Agreement or the sale or issuance transactions contemplated hereby. None of the shares of capital stock of the Company or of any of Company’s Subsidiaries (collectively, the “Company Instruments”). Except as set forth in the SEC Filings or as contemplated by this Agreement and the Transaction Documents, (i) the Company has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as interests of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company Subsidiary were issued in accordance with the registration or qualification provisions violation of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefromapplicable Laws.

Capitalization; Options. (a) The Company Seller is authorized to issue 250,000,000 50,000,000 shares of Common Stock, par value $0.00001 per share, 38,197,596 of which are issued and outstanding as of the date hereof, (“Common Stock”) and 25,000,000 shares of Series A Preferred Stock, none 8,055,619 of which are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this Agreement), and 2,000,000 shares of preferred stock, par value $0.01 ("Preferred Stock"), of which none are issued and outstanding as of the date hereof. (b) All of the Purchase Shares when issued to the Buyer in accordance with the terms of this Agreement shall be legally and validly issued, fully paid and non-non- assessable, free and clear of all LiensLiens other than transfer restrictions provided under the Securities Act and comparable state securities laws. The shares Warrant when issued to Buyer in accordance with the terms of Common Stock issuable upon conversion this Agreement shall be legally and validly issued, free and clear of all Liens other than transfer restrictions provided under the Securities Act and comparable state securities laws and other than as provided by the terms of the Purchase Warrant. The Warrant Shares or the when issued upon exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company andWarrant, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental RulesWarrant, shall be legally and validly issued, fully paid and nonassessable, free and clear of all LiensLiens other than as provided under the Securities Act and comparable state securities laws. The Seller has reserved for issuance the Warrant Shares on the Seller's books and records upon exercise of the Warrant in accordance with their terms. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company Seller authorized or issued and outstanding. Except as set forth disclosed in the Seller Disclosure Schedule or except as disclosed in the SEC FilingsReports or any exhibit thereto, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments or other instruments convertible into or exchangeable for shares of capital stock of the Company Seller or any of the Company’s Seller's Subsidiaries, in each such case, to which the Company Seller or any of Company’s Seller's Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock of the Company Seller or of any of Company’s Seller's Subsidiaries (collectively, the “Company "Seller Instruments”"). As of the date hereof, there are 1,500,000 shares of Common Stock reserved on the Seller's books and records for issuance pursuant to the Seller's 1999 Stock Option Plan (included as an exhibit to the Seller's Definitive Proxy Statement dated March 31, 1999). Except as set forth on the Seller Disclosure Schedule, as disclosed in the SEC Filings Reports or any exhibit thereto or as contemplated by this Agreement and the Transaction Documents, (i) the Company Seller has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company Seller is a party with respect to the voting or transfer of any shares of Common Stock. Except as set forth on the Seller Disclosure Schedule or as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Seller Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares or the Warrant nor the issuance of any Warrant Shares upon the Conversion Shares exercise of the Warrant in accordance with its their terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Seller Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefrom.

Capitalization; Options. (a) The Company is authorized to issue 250,000,000 20,000,000 shares of Common Stock, par value $0.00001 per share, 38,197,596 5,600,000 of which are issued and outstanding as of the date hereof, (“"Common Stock”") and 25,000,000 1,000,000 shares of Series A Preferred Stock, none of which are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this Agreement). (b) All of the Purchase Shares when issued to the Buyer Buyers in accordance with the terms of this Agreement shall be legally and validly issued, fully paid and non-assessable, free and clear of all Liens. The shares of Common Stock issuable upon conversion of the Purchase Shares or the exercise of the Warrant (the “"Conversion Shares”") have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liens. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company authorized or issued and outstanding. Except as set forth in on Section 3.6(c) of the SEC FilingsCompany Disclosure Schedule, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments or other instruments convertible into or exchangeable for shares of capital stock of the Company or any of the Company’s 's Subsidiaries, in each such case, to which the Company or any of Company’s 's Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock of the Company or of any of Company’s 's Subsidiaries (collectively, the “"Company Instruments”)") As of the date hereof, there are 10,100,000 shares of Common Stock reserved on the Company's books and records for issuance upon exercise of redeemable warrants and an option held by the underwriter of the Company's initial public offering. Except as set forth in on Section 3.6(c) of the SEC Filings Company Disclosure Schedule or as contemplated by this Agreement and the Transaction Documents, (i) the Company has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s 's representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefrom.

Capitalization; Options. (a) The Company is authorized to issue 250,000,000 75,000,000 shares of Common Stock, par value $0.00001 per share, 38,197,596 15,220,817 of which are issued and outstanding as of the date hereof, (“Common Stock”) and 25,000,000 1,000,000 shares of Series A Preferred Stock, none of which are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this AgreementAgreement and the Company’s Preferred Stock Purchase Agreement dated November 14, 2007). (b) All of the Purchase Shares when issued to the Buyer Buyers in accordance with the terms of this Agreement shall be legally and validly issued, fully paid and non-assessable, free and clear of all Liens. The shares of Common Stock issuable upon conversion of the Purchase Shares or the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liens. (c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company authorized or issued and outstanding. Except as set forth in on Section 3.6(c) of the SEC FilingsCompany Disclosure Schedule, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments or other instruments convertible into or exchangeable for shares of capital stock of the Company or any of the Company’s Subsidiaries, in each such case, to which the Company or any of Company’s Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock of the Company or of any of Company’s Subsidiaries (collectively, the “Company Instruments”)) As of the date hereof, there are (i) 14,146,000 shares of Common Stock reserved on the Company’s books and records for issuance upon exercise of redeemable warrants and an option held by the underwriter of the Company’s initial public offering, (ii) 150,000 shares of Common Stock reserved on the Company’s books and records for issuance upon the exercise of stock options issued to members of the Company’s board of directors and (iii) there are 214,000 shares of restricted common stock, issued pursuant to the Company’s 2006 Long-Term Incentive Plan, issued and outstanding in the name of Company officers and employees. Except as set forth in on Section 3.6(c) of the SEC Filings Company Disclosure Schedule or as contemplated by this Agreement and the Transaction Documents, : (i) the Company has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the Conversion Shares in accordance with its terms will result in an adjustment of the exercise or conversion price of, or number of shares issuable upon the exercise or conversion of any such, Company Instruments. (d) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable. All outstanding Common Stock, options and other securities of the Company were issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws (including, without limitation, anti-fraud provisions) or, subject in part to the truth and accuracy of each purchaser’s representations to the Company at the time of the purchase thereof, pursuant to valid exemptions therefrom.