Common use of Capitalization; Securities Clause in Contracts

Capitalization; Securities. (a) As of the date hereof, the authorized capital stock of the Company consists of (i) 80,000,000 shares of Common Stock, of which 31,788,288 shares were outstanding as of July 13, 1999, 6,034,079 are reserved for issuance under the Option Plans, 4,732,333 are reserved for issuance pursuant to the Company Warrants and 23,262 shares are reserved for issuance pursuant to the option granted to Xxxx X. Xxxxxxxx, which is disclosed on Schedule 3.04(d) hereto, and (ii) 10,000,000 shares of preferred stock, without par value, of which no shares are outstanding, no shares have been designated and no shares are reserved for issuance. All of such outstanding shares of Common Stock were duly authorized and validly issued and are fully paid and non-assessable and are validly listed for trading on the NYSE. (b) Except for the Company Warrants and the options granted pursuant to the Option Plans or as set forth on Schedule 3.04(b) hereto, there are no authorized or outstanding (or any obligations to authorize or issue) Derivative Securities. (c) As of the date hereof, the Company and its Subsidiaries have no outstanding Indebtedness other than (i) Indebtedness outstanding pursuant to the Credit Agreement not in excess of $500,000,000 in principal amount in the aggregate, (ii) Senior Subordinated Notes with an aggregate principal amount of $625,000,000, (iii) inter-company Indebtedness among Subsidiaries of the Company or among Subsidiaries of the Company and the Company, and (iv) other Indebtedness not in excess of $25,000,000 in principal amount in the aggregate. A true, complete and correct copy of each of the Credit Agreement, the Indenture and each other instrument or agreement governing Indebtedness of the Company or any of its Subsidiaries the principal amount of which exceeds $10,000,000, including the respective exhibits and schedules thereto and any other material documents executed in connection therewith, has been delivered to the Investor. (d) Subject to the filing of the Certificates of Designations with the Secretary of State of the State of Delaware, the shares of Preferred Stock to be issued pursuant to this Agreement have been duly and validly authorized and, when issued as contemplated by this Agreement, will have been validly issued and will be fully paid and nonassessable. The Conversion Shares have been duly and validly authorized and validly reserved for issuance, and when issued upon the conversion of the Senior Preferred Stock will have been validly issued and will be fully paid and non-assessable. Except as set forth in Schedule 3.04(d) hereto, the registration of the Senior Preferred Stock, Junior Shares, Conversion Shares, Dividend Shares or Debentures pursuant to the Registration Rights Agreement will not give rise to any registration rights on behalf of any Person under any agreement or instrument applicable to the Company (other than the Registration Rights Agreement). Except as set forth in Schedule 3.04(d) hereto, other than pursuant to the Registration Rights Agreement, no Person has any right to require the Company to register securities of the Company under the Securities Act, and there are no shareholder or similar agreements to which the Company is a party. Prior to the issuance thereof, the Debentures will have been duly and validly authorized by the Company and, upon execution and delivery thereof in accordance with the terms of the Senior Preferred Stock, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equity.

Capitalization; Securities. (a) As Schedule 3.4(a) contains a complete and correct list of the authorized, issued and outstanding Equity Securities and Derivative Securities of each Classic Company as of the date hereof, the authorized capital stock . The issued and outstanding Equity Securities of the each Classic Company consists of (i) 80,000,000 shares of Common Stock, of which 31,788,288 shares were outstanding as of July 13, 1999, 6,034,079 are reserved for issuance under the Option Plans, 4,732,333 are reserved for issuance pursuant to the Company Warrants and 23,262 shares are reserved for issuance pursuant to the option granted to Xxxx X. Xxxxxxxx, which is disclosed on Schedule 3.04(d) hereto, and (ii) 10,000,000 shares of preferred stock, without par value, of which no shares are outstanding, no shares have been designated and no shares are reserved for issuance. All of such outstanding shares of Common Stock were duly authorized and validly issued and issued, are fully paid and non-assessable nonassessable, and have not been issued in violation of any securities Laws, preemptive or similar rights created by statute, the charter, bylaws or similar organizational documents of any Classic Company, or any agreement to which any Classic Company is a party to or by which its property is bound. The Equity Securities and Derivative Securities of each Classic Company are owned beneficially and of record as disclosed on Schedule 3.4(a) (including the number and percentage of shares of each class of such securities), and are validly listed for trading on the NYSEnot subject to any Lien. (b) Except for the Company Warrants and the options granted pursuant to the Option Plans or as set forth disclosed on Schedule 3.04(b) hereto3.4(b), there are no contractual or other restrictions or limitations on the ability of any Classic Company to pay any dividends or make any other distributions on, or to purchase, redeem or otherwise acquire, any of its Equity Securities. Except as shown in Schedule 3.4(a), there are no authorized or outstanding (or any obligations to authorize or issue) Derivative Securities. (c) The Company has delivered to the Investor complete and correct copies of the credit agreements, indentures and similar documents with respect to all material Indebtedness, including the exhibits and schedules thereto, and any other documents executed in connection therewith. (d) As of the date hereof, there are no shares of Common Stock reserved for issuance including, without limitation, under the Company and its Subsidiaries have no outstanding Indebtedness Restricted Stock Plan or the Stock Incentive Plan, other than (i) Indebtedness outstanding pursuant to the Credit Agreement not in excess of $500,000,000 in principal amount in the aggregate, (ii) Senior Subordinated Notes with an aggregate principal amount of $625,000,000, (iii) inter-company Indebtedness among Subsidiaries 335,860 shares that are reserved for issuance upon exercise of the Company or among Subsidiaries of outstanding warrants. By the Company and the Company, and (iv) other Indebtedness not in excess of $25,000,000 in principal amount in the aggregate. A true, complete and correct copy of each of the Credit AgreementClosing, the Indenture and each other instrument or agreement governing Indebtedness of the Company or any of its Subsidiaries the principal amount of which exceeds $10,000,000, including the respective exhibits and schedules thereto and any other material documents executed in connection therewith, has been delivered to the Investor. (d) Subject to the filing of the Certificates of Designations with the Secretary of State of the State of Delaware, the shares of Preferred Stock to be issued pursuant to this Agreement have been duly and validly authorized and, when issued as contemplated by this Agreement, Securities will have been validly issued authorized and will be issued, fully paid and nonassessable. The Conversion Shares have been duly and validly authorized and validly reserved for issuance, and when issued upon except as provided in the conversion Stockholders' Agreement or as required by law, free of the Senior Preferred Stock will have been validly issued transfer restrictions and will be fully paid and non-assessableLiens. Except as set forth in Schedule 3.04(d) hereto, the registration of the Senior Preferred Stock, Junior Shares, Conversion Shares, Dividend Shares or Debentures Other than pursuant to (i) the Registration Rights Agreement will not give rise to any registration rights on behalf of any Person under any agreement or instrument applicable to and (ii) the Company (other than the Existing Registration Rights Agreement). Except as set forth in Schedule 3.04(d) hereto, other than pursuant to the Registration Rights AgreementAgreements, no Person has any right to require the Company to register securities of the Company under the Securities Act, and there are no shareholder or similar agreements to which securities that the Company is a party. Prior required to register. (e) Except for the issuance thereofExisting Stockholder Agreements, the Debentures will have been duly Existing Registration Rights Agreements, the Company's 1996 Restricted Stock Award Plan effective May 1, 1996, as amended, and validly authorized by the Restricted Stock Plan, there is no agreement, arrangement or understanding involving the Company and, upon execution and delivery thereof in accordance with or its stockholders concerning the terms of the Senior Preferred Common Stock, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equity.

Capitalization; Securities. (a) As of the date hereof, the authorized capital stock of the Company consists of (i) 80,000,000 200,000,000 shares of Common Stock, of which 31,788,288 69,612,900 shares were are outstanding as of July 13, 1999, 6,034,079 and 3,079,510 shares are reserved for issuance under the Option Plans, 4,732,333 are reserved Plan and an additional 3,600,000 shares have been properly authorized for issuance pursuant to under the Company Warrants and 23,262 shares are reserved for issuance pursuant to the option granted to Xxxx X. Xxxxxxxx, which is disclosed on Schedule 3.04(d) heretoOption Plan but not formally reserved, and (ii) 10,000,000 50,000,000 shares of preferred stock, without $0.01 par value, of which no shares are outstanding, no shares have been designated and no shares are reserved for issuance. All of such outstanding shares of Common Stock were duly authorized and validly issued and are fully paid and non-assessable and are validly listed for trading on the NYSEassessable. (b) Except for the Company Warrants options and the options purchase rights granted pursuant to the Option Plans or Plan and except as set forth on Schedule 3.04(b) heretocontemplated by this Agreement, there are no authorized or outstanding (or any obligations to authorize or issue) Derivative Securities. (c) As of the date hereof, the Company and its Subsidiaries have no outstanding Indebtedness other than (i) Indebtedness outstanding pursuant to the Credit Agreement not in excess of $500,000,000 in principal amount in the aggregate, (ii) Senior Subordinated Notes with an aggregate principal amount of $625,000,000, (iii) inter-company Indebtedness among Subsidiaries of the Company or among Subsidiaries of the Company and the Company, and (iv) other Indebtedness not in excess of $25,000,000 in principal amount in the aggregate. A true, complete and correct copy of each of the Credit Agreement, the Indenture and each other instrument or agreement governing Indebtedness of the Company or any of its Subsidiaries the principal amount of which exceeds $10,000,000, including the respective exhibits and schedules thereto and any other material documents executed in connection therewith, has been delivered to the Investor. (d) Subject to the filing of the Certificates Series A Certificate of Designations with the Secretary of State of the State of Delaware, the shares of Series A Preferred Stock to be issued pursuant to this Agreement have been duly and validly authorized and, when issued as contemplated by this Agreement, will have been validly issued and will be fully paid and nonassessablenon-assessable. The Conversion Shares and the Warrant Shares have been duly and validly authorized and validly reserved for issuance, and when issued upon the conversion of the Senior Series A Preferred Stock and the exercise of the Warrants, respectively, will have been validly issued and will be fully paid and non-assessable. Prior to the issuance thereof, the Notes will have been duly and validly authorized by the Company and, upon execution and delivery thereof, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency reorganization, moratorium or other laws affecting creditors' rights generally and subject to general principles of equity regardless of whether considered in a proceeding in equity or at law. Except as set forth in Schedule 3.04(d) heretoSection 3.14 of the Disclosure Schedule, the registration of the Senior Series A Preferred Stock, Junior Shares, the Conversion Shares, Dividend the Warrants, the Warrant Shares or Debentures and the Notes pursuant to the Registration Rights Agreement will not give rise to any registration rights on behalf of any Person under any agreement or instrument applicable to the Company (other than the Registration Rights Agreement). Except as set forth in Schedule 3.04(d) hereto, other Other than pursuant to the Registration Rights AgreementAgreement or as set forth in Section 3.14(c) of the Disclosure Schedule, no Person has any right to require the Company to register securities of the Company under the Securities Act, and there are no shareholder or similar agreements to which the Company is a party. Prior . (d) The Company is eligible to register securities for resale on Form S-3 under the issuance thereof, the Debentures will have been duly and validly authorized by the Company and, upon execution and delivery thereof in accordance with the terms of the Senior Preferred Stock, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equitySecurities Act.

Capitalization; Securities. (a) As of the date hereof, the authorized capital stock of the Company consists of (i) 80,000,000 10,000,000 shares of Common Stock, of which 31,788,288 5,136,316 shares were outstanding as are outstanding, 2,333,333 are reserved for issuance upon conversion of July 13, 1999, 6,034,079 Senior Preferred Stock and 1,082,667 are reserved for issuance under the Option Plans, 4,732,333 are reserved for issuance as applicable, the COO Agreement and all other agreements or arrangements pursuant to which the Company Warrants and 23,262 shares are reserved for issuance pursuant has or is obligated to the option granted to Xxxx X. Xxxxxxxx, which is disclosed on Schedule 3.04(d) heretoissue options or warrants, and (ii) 10,000,000 2,000,000 shares of preferred stock, without par valuevalue $0.10 per share, of which no shares are outstanding, no shares have been designated and no shares are reserved for issuance. All of such outstanding shares of Common Stock were duly authorized and validly issued and are fully paid and non-assessable and are validly listed for trading on the NYSEassessable. (b) Except for the Company Warrants and Senior Preferred Stock to be issued pursuant to this Agreement, the options securities granted or to be granted pursuant to the Option Plans or COO Agreement and as set forth on Schedule 3.04(b) hereto2.4(b), there are no authorized or outstanding (or any obligations to authorize or issue) Derivative Securities. (c) As of the date hereof, the The Company and its Subsidiaries have no outstanding Indebtedness other than (i) Indebtedness outstanding pursuant to under the Credit Agreement not in excess of $500,000,000 in principal amount agreements and in the aggregate, (iiamounts set forth on Schedule 2.4(c) Senior Subordinated Notes with an aggregate principal amount of $625,000,000, (iiiand other than Indebtedness incurred under Section 2.9(v) inter-company Indebtedness among Subsidiaries of after the Company or among Subsidiaries of the Company and the Company, and (iv) other Indebtedness not in excess of $25,000,000 in principal amount in the aggregatedate hereof. A true, complete and correct copy of each of the Credit Agreementcredit agreement, the Indenture indenture and each other instrument or agreement governing Indebtedness of the Company or any of its Subsidiaries the principal amount of which exceeds $10,000,000similar documents with respect to such Indebtedness, including the respective exhibits and schedules thereto and any other material documents executed in connection therewith, has been delivered made available to the Investor. (d) Subject to the filing of the Certificates of Designations with the Secretary of State of the State of Delaware, the shares of Senior Preferred Stock to be issued pursuant to this Agreement have been duly and validly authorized and, when issued as contemplated by this Agreement, will have been validly issued and will be fully paid and nonassessablenon-assessable. The Conversion Shares have been duly and validly authorized and validly reserved for issuanceissuance and, and when issued upon the conversion of the Senior Preferred Stock Stock, will have been validly issued and will be fully paid and non-assessable. Schedule 2.4(d) sets forth a complete and correct list of the registration rights, shareholder, voting rights and similar agreements requiring the Company to register securities under the Securities Act or governing voting and other rights of shareholders of the Company, in each case to which the Company is a party. Except as set forth in on Schedule 3.04(d) hereto2.4(d), the registration of the Senior Preferred Stock, Junior Shares, Conversion Shares, Dividend Shares or Debentures pursuant to the Registration Rights Agreement will not give rise to any registration rights on behalf of any Person under any agreement or instrument applicable to the Company (other than the Registration Rights Agreement). Except As of the date hereof, there are, and as set forth in Schedule 3.04(d) hereto, other than pursuant to of the Registration Rights AgreementClosing Date there will be, no Person has any right to require the Company to register securities of the Company under the Securities Act, and there are no shareholder or similar agreements as to which the Company is has received a partyrequest pursuant to any agreement listed on Schedule 2.4(d) hereto. Prior to the issuance thereof, the Debentures will have been duly and validly authorized by the Company and, upon execution and delivery thereof in accordance with the terms of the Senior Preferred Stock, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equity.Section 2.5

Capitalization; Securities. (a) As of the date hereof, the authorized capital stock of the Company consists of of: (i) 80,000,000 shares an unlimited number of Common StockShares, of which 31,788,288 shares were outstanding as of July 1326,801,680 are outstanding, 1999, 6,034,079 2,519,244 are reserved for issuance under the Option PlansPlan, 4,732,333 75,000 are reserved for issuance pursuant to the Company Warrants under warrants and 23,262 shares 64,858 are reserved for issuance pursuant to under the option granted to Xxxx X. Xxxxxxxx, which is disclosed on Schedule 3.04(d) hereto, and Purchase Plan; (ii) 10,000,000 shares an unlimited number of first and second preferred stockshares, without par valueissuable in series, of which no shares are outstanding, no shares have been designated outstanding and no shares are reserved for issuance. All ; and (iii) all of such outstanding shares of Common Stock Shares were duly authorized and validly issued and are fully paid and non-assessable and are validly listed for trading on the NYSEassessable. (b) Except for options to purchase in the Company Warrants and the options granted aggregate 1,890,531 Common Shares with an average exercise price of approximately U.S.$13.00 per share pursuant to the Option Plans or Plan and the natural gas hedging agreements described in Note 6 to the Consolidated Financial Statements of the Company contained in its Form 10-Q filed with the Commission on November 6, 1998, natural gas hedging agreements entered into in the normal course of business and options to purchase not more than 100,000 Common Shares that may be granted in accordance with the policy of the Board of Directors in connection with the hiring of new employees since the disclosure in such Note 6 through the Closing Date, and those certain options approved by the Board of Directors of the Company on December 1, 1998 to be granted as set forth on Schedule 3.04(b) heretoof January 1, 1999, there are no authorized or outstanding (or any obligations to authorize or issue) Derivative Securities. (c) As of the date hereofDecember 1, 1998, the Company and its Subsidiaries have no outstanding Indebtedness other than (i) U.S.$100,000,000 of Indebtedness outstanding pursuant to the NationsBank Credit Agreement not in excess Facility, U.S.$125,000,000 of $500,000,000 in principal amount in the aggregate, (ii) Company's 9% 9 Senior Subordinated Notes with an aggregate principal amount and no more than U.S.$5,000,000 pursuant to all other credit arrangements, notes and ordinary course of $625,000,000, (iii) inter-company Indebtedness among Subsidiaries of the Company or among Subsidiaries of the Company and the Company, and (iv) other Indebtedness not in excess of $25,000,000 in principal amount in the aggregatebusiness credit facilities. A trueTrue, complete and correct copy of each copies of the NationsBank Credit Agreement, the Indenture Facility and each other instrument or agreement governing Indebtedness of the Company or any of its Subsidiaries the principal amount of which exceeds $10,000,000Indenture, including the respective exhibits and schedules thereto and any other material documents executed in connection therewith, has been delivered will be made available to the InvestorBuyer upon request. (d) Subject to the filing of the Certificates of Designations with the Secretary of State of the State of Delaware, the shares of Preferred Stock to be issued pursuant to this Agreement have been duly and validly authorized and, when issued as contemplated by this Agreement, will have been validly issued and will be fully paid and nonassessable. The Conversion Shares have been duly and validly authorized and validly reserved for issuance, and when issued upon the conversion of the Senior Preferred Stock will have been validly issued and will be fully paid and non-assessable. Except as set forth in Schedule 3.04(d) hereto, the registration of the Senior Preferred Stock, Junior Shares, Conversion Shares, Dividend Shares or Debentures Other than pursuant to the Registration Rights Agreement will not give rise to any registration rights on behalf agreement dated as of any Person under any agreement or instrument applicable to December 21, 1995 among the Company (other than the Registration Rights Agreement). Except as set forth in Schedule 3.04(d) heretoand certain of Buyer's Affiliates, other than pursuant to or under the Registration Rights Agreement, no Person has any right to require the Company to register securities of the Company under the Securities Act, and there are no shareholder or similar agreements to which the Company is a party, except as disclosed on Schedule 3.5(d) hereto. Prior to To the issuance thereofCompany's knowledge, the Debentures will have been duly and validly authorized by there are no securities that the Company and, upon execution and delivery thereof in accordance with the terms of the Senior Preferred Stock, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject is required to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and register pursuant to general principles of equityany agreement listed on Schedule 3.5(d) hereto.

Capitalization; Securities. (a) As of Upon the date hereofClosing and after giving effect to the Confirmation Order, the Plan and the Investment, the authorized capital stock of the reorganized Company consists shall consist solely of (i) 80,000,000 shares of Class A Common StockShares, the principal terms of which 31,788,288 shares were outstanding as are set forth in Exhibit A attached hereto and (ii) Class B Common Shares, the principal terms of July 13which are set forth in Exhibit A attached hereto. Upon the Closing (after giving effect to the Confirmation Order, 1999, 6,034,079 are the Plan and the Investment and all issuances of Equity Securities reserved for issuance under to Constituents and employees of the Option PlansCompanies in accordance with the Plan) there shall not be outstanding any (A) Class A Common Shares, 4,732,333 are reserved other than (x) Class A Common Shares to be issued by the Company to or for issuance the benefit of the Constituents in accordance with the Plan and (y) Class A Common Shares to be issued by the Company to members of management of the Company as stock options or restricted stock, stock options and other types of equity-based compensation awards ( Management Restricted Stock ), such shares described in clauses (x) and (y) shall equal in the aggregate, 20.1% of the total equity capital of the Company on a Fully Diluted Basis and (B) Class B Common Shares other than the Class B Common Shares issued to the Investor on the Closing Date, representing 79.9% of the total equity capital of the Company on a Fully Diluted Basis. The Management Restricted Stock shall be issued pursuant to the Company Warrants terms of an equity incentive plan to be adopted by the Company, and 23,262 shares are reserved reasonably acceptable to the Investor, that provides for the issuance of Class A Common Shares pursuant to grants of restricted stock, stock options and other types of equity-based compensation awards. Upon the Closing Date, all of such outstanding securities, including the Class B Common Shares to be issued and delivered to the Investor pursuant to the option granted terms hereof, shall have been duly authorized and validly issued, fully paid, nonassessable and not subject to Xxxx X. Xxxxxxxxpreemptive or similar rights of third parties. The Class A Common Shares issuable upon the conversion of the Class B Common Shares, when issued and delivered to the holders of the Class B Common Shares, shall have been duly authorized and be validly issued, fully paid, nonassessable and not subject to preemptive or similar rights of third parties. Upon the Closing and after giving effect to the Confirmation Order and the Plan, (i) there shall be no voting trusts, voting agreements, proxies, first refusal rights, first offer rights, co-sale rights, options, transfer restrictions or other agreements, instruments or understandings (whether oral, formal or informal) with respect to the voting, transfer or disposition of capital stock of the Company or any Subsidiary to which the Company or any Subsidiary is disclosed on Schedule 3.04(d) heretoa party or by which it is bound, or, to the Knowledge of the Company, among or between any Persons other than the Company or any Subsidiary (as the case may be), except as set forth in this Agreement, and (ii) 10,000,000 shares of preferred stock, without par value, of which no shares are outstanding, no shares have been designated and no shares are reserved for issuance. All of such outstanding shares of Common Stock were duly authorized and validly issued and are fully paid and non-assessable and are validly listed for trading on the NYSE. (b) Except for the Company Warrants and the options granted pursuant to the Option Plans or except as set forth on Schedule 3.04(b) heretoherein or in the Plan, there are shall be no authorized options, warrants, rights, calls, commitments or outstanding (or agreements of any obligations character to authorize or issue) Derivative Securities. (c) As of the date hereof, the Company and its Subsidiaries have no outstanding Indebtedness other than (i) Indebtedness outstanding pursuant to the Credit Agreement not in excess of $500,000,000 in principal amount in the aggregate, (ii) Senior Subordinated Notes with an aggregate principal amount of $625,000,000, (iii) inter-company Indebtedness among Subsidiaries of which the Company or among Subsidiaries of any Subsidiary is a party, or by which the Company and or any Subsidiary is bound, calling for the Company, and (iv) issuance of shares of capital stock or other Indebtedness not in excess of $25,000,000 in principal amount in the aggregate. A true, complete and correct copy of each of the Credit Agreement, the Indenture and each other instrument or agreement governing Indebtedness Equity Securities of the Company or any of its Subsidiaries the principal amount of which exceeds $10,000,000Subsidiary, including the respective exhibits and schedules thereto and or other arrangement to acquire, at any other material documents executed in connection therewithtime or under any circumstance, has been delivered to the Investor. (d) Subject to the filing capital stock of the Certificates of Designations with Company or any Subsidiary or any such other securities other than the Secretary of State Management Restricted Stock. The rights, preferences and privileges of the State of Delaware, the shares of Preferred Stock to be issued pursuant to this Agreement have been duly and validly authorized and, when issued as contemplated by this Agreement, will have been validly issued and will be fully paid and nonassessable. The Conversion Shares have been duly and validly authorized and validly reserved for issuance, and when issued upon the conversion capital stock of the Senior Preferred Stock will have been validly issued and will Company shall be fully paid and non-assessable. Except as set forth in Schedule 3.04(d) hereto, the registration Certificate of the Senior Preferred Stock, Junior Shares, Conversion Shares, Dividend Shares or Debentures pursuant to the Registration Rights Agreement will not give rise to any registration rights on behalf of any Person under any agreement or instrument applicable to the Company (other than the Registration Rights Agreement). Except as set forth in Schedule 3.04(d) hereto, other than pursuant to the Registration Rights Agreement, no Person has any right to require the Company to register securities of the Company under the Securities Act, and there are no shareholder or similar agreements to which the Company is a party. Prior to the issuance thereof, the Debentures will have been duly and validly authorized by the Company and, upon execution and delivery thereof in accordance with the terms of the Senior Preferred Stock, will constitute legal, valid and binding obligations Incorporation of the Company, enforceable against as amended pursuant to the Company Plan and in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equityeffect upon the Closing.

Capitalization; Securities. (ai) As The authorized capital of the date hereof, Borrower consists of the authorized capital securities shown on Exhibit D hereto. All outstanding shares of stock of the Company consists Borrower are duly and validly authorized and issued, fully paid and nonassessable, were issued in compliance with all applicable state and federal securities laws, and are held of record by the Persons and in the amounts set forth on Exhibit D. Except as shown on Exhibit D, (i) 80,000,000 there are no outstanding options, warrants, rights (including conversion privileges and preemptive rights) or agreements for the purchase or acquisition from the Borrower of any shares of Common Stock, of which 31,788,288 shares were outstanding as of July 13, 1999, 6,034,079 are reserved for issuance under the Option Plans, 4,732,333 are reserved for issuance pursuant to the Company Warrants and 23,262 shares are reserved for issuance pursuant to the option granted to Xxxx X. Xxxxxxxx, which is disclosed on Schedule 3.04(d) heretoits capital stock, and (ii) 10,000,000 shares the Borrower is not a party or subject to any agreement or understanding, and, to the Borrower’s knowledge, there is no agreement or understanding between any Persons which affects or relates to the voting or giving of preferred stockwritten consents with respect to any security, without par value, provided that this representation shall not be deemed to be breached if Borrower gives Agent written notice promptly after Borrower in the future becomes aware of which no shares are outstanding, no shares have been designated and no shares are reserved for issuance. All of any such outstanding shares of Common Stock were duly authorized and validly issued and are fully paid and non-assessable and are validly listed for trading on the NYSEagreement or understanding. (b) Except for the Company Warrants and the options granted pursuant to the Option Plans or as set forth on Schedule 3.04(b) hereto, there are no authorized or outstanding (or any obligations to authorize or issue) Derivative Securities. (c) As of the date hereof, the Company and its Subsidiaries have no outstanding Indebtedness other than (i) Indebtedness outstanding pursuant to the Credit Agreement not in excess of $500,000,000 in principal amount in the aggregate, (ii) Senior Subordinated Notes with an aggregate principal amount of $625,000,000, (iii) inter-company Indebtedness among Subsidiaries of the Company or among Subsidiaries of the Company All stock and the Company, and (iv) other Indebtedness not in excess of $25,000,000 in principal amount in the aggregate. A true, complete and correct copy of each of the Credit Agreement, the Indenture and each other instrument or agreement governing Indebtedness of the Company or any of its Subsidiaries the principal amount of which exceeds $10,000,000, including the respective exhibits and schedules thereto and any other material documents executed in connection therewith, has been delivered to the Investor. (d) Subject to the filing of the Certificates of Designations with the Secretary of State of the State of Delaware, the shares of Preferred Stock securities to be issued pursuant to Lenders in connection with this Agreement have been duly (including stock issued upon conversion of the Notes and validly authorized andthe Preferred Stock and upon exercise of the Warrants), when issued as contemplated by this Agreement, will have been validly issued and will be fully paid and nonassessable. The Conversion Shares have been duly and validly authorized and validly reserved for issuance, and when issued upon the conversion of the Senior Preferred Stock will have been validly issued and will be fully paid and non-assessable. Except as set forth in Schedule 3.04(d) hereto, the registration of the Senior Preferred Stock, Junior Shares, Conversion Shares, Dividend Shares or Debentures pursuant to the Registration Rights Agreement will not give rise to any registration rights on behalf of any Person under any agreement or instrument applicable to the Company (other than the Registration Rights Agreement). Except as set forth in Schedule 3.04(d) hereto, other than pursuant to the Registration Rights Agreement, no Person has any right to require the Company to register securities of the Company under the Securities Act, and there are no shareholder or similar agreements to which the Company is a party. Prior to the issuance thereof, the Debentures will have been duly and validly authorized by the Company and, upon execution and delivery thereof in accordance with the terms of this Agreement and the Senior Preferred Stockdocuments relating thereto and for the consideration therein stated, will constitute legalbe duly and validly issued, valid fully paid and binding obligations nonassessable, the Preferred Stock will have the terms set forth in the Certificate of Determination and, assuming the accuracy of the CompanyLenders’ representations and warranties herein, enforceable against the Company in accordance with their termssuch securities will be free of restrictions on transfer, subject to other than restrictions on transfer under this Agreement and under applicable bankruptcy, insolvency state and similar laws affecting creditors' rights generally and to general principles of equityfederal securities laws.

Capitalization; Securities. (a) As of the date hereof, the authorized capital stock of the Company consists of (i) 80,000,000 400,000,000 shares of Common Stock, of which 31,788,288 79,490,249 shares were outstanding as of July 13are outstanding, 1999, 6,034,079 3,614,621 are reserved for issuance under the Option Plans, 4,732,333 and 22,530,000 are reserved for issuance pursuant to the Company Warrants and 23,262 shares are reserved for issuance pursuant to the option granted to Xxxx X. Xxxxxxxx, which is disclosed on Schedule 3.04(d) heretoWarrants, and (ii) 10,000,000 2,000,000 shares of preferred stock, without par valuevalue $0.01 per share, of which no shares are outstanding, no shares have been designated and no shares are reserved for issuance. All of such outstanding shares of Common Stock were duly authorized and validly issued and are fully paid and non-assessable and are validly listed for trading on the NYSEassessable. (b) Except for the Company Warrants and options to purchase in the options granted aggregate 10,257,314 shares of Common Stock with an average exercise price of $22.25 per share pursuant to the Option Plans or as set forth on Schedule 3.04(b) heretoand the options to purchase Common Stock granted to Dr. Xxxxxx X. Xxxxxx pursuant to the CEO Agreement, there are no authorized or outstanding (or any obligations to authorize or issue) Derivative Securities. (c) As of the date hereof, the The Company and its Subsidiaries have no outstanding Indebtedness other than (i) $100,000,000 of Indebtedness outstanding pursuant to the Credit Agreement not in excess of $500,000,000 in principal amount in the aggregate, (ii) Senior Subordinated Notes with an aggregate principal amount of $625,000,000, (iii) inter-company Indebtedness among Subsidiaries of the Company or among Subsidiaries of the Company and the Company, and (iv) other Indebtedness not in excess of $25,000,000 in principal amount in the aggregateBridge Agreement. A true, complete and correct copy of each of the Credit Bridge Agreement, the Indenture and each other instrument or agreement governing Indebtedness of the Company or any of its Subsidiaries the principal amount of which exceeds $10,000,000, including the respective exhibits and schedules thereto and any other material documents executed in connection therewith, has been delivered made available to the Investor. (d) Subject to the filing of the Certificates of Designations with the Secretary of State of the State of Delaware, the shares of Preferred Stock to be issued pursuant to this Agreement and issuable pursuant to the Series B Warrants have been duly and validly authorized and, when issued as contemplated by this Agreement, will have been validly issued and will be fully paid and nonassessable. The Conversion Shares have been duly and validly authorized and validly reserved for issuance, and when issued Agreement or upon the conversion exercise of the Senior Preferred Stock Series B Warrants, as the case may be, will have been validly issued and will be fully paid and non-assessable. Except as set forth in Schedule 3.04(d) heretoThe Warrant Shares have been duly and validly authorized and validly reserved for issuance and, when issued upon exercise of the Warrants, will have been validly issued and will be fully paid and non-assessable. The registration of the Senior Preferred StockSecurities, Junior Shares, Conversion Shares, Dividend Warrant Shares or Debentures pursuant to the Registration Rights Agreement will not give rise to any registration rights on behalf of any Person (other than the CEO as described in Exhibit H hereto) under any agreement or instrument applicable to the Company (other than the Registration Rights Agreement). Except as set forth in Schedule 3.04(d) hereto, other Other than pursuant to the Registration Rights Agreement, no Person has any right to require the Company to register securities of the Company under the Securities Act, and there are no shareholder or similar agreements to which the Company is a party, except as disclosed on Schedule 3.04(d) hereto. Prior To the Company's knowledge, there are no securities that the Company is required to the issuance thereof, the Debentures will register pursuant to any agreement listed on Schedule 3.04(d) hereto. The Warrants have been duly and validly authorized by the Company and, upon execution and delivery thereof in accordance with the terms of the Senior Preferred Stockwhen issued as contemplated by this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equity.

Capitalization; Securities. (a) As of the date hereof, the authorized capital stock of the Company consists of (i) 80,000,000 shares of Common Stock, of which 31,788,288 shares were outstanding as of July 13, 1999, 6,034,079 shares are reserved for issuance under the Option Plans, 4,732,333 shares are reserved for issuance pursuant to the Company Warrants and 23,262 shares are reserved for issuance pursuant to the option granted to Xxxx X. XxxxxxxxPaul G. Shoffeit, which is disclosed on Schedule 3.04(d) hereto, and (ii) 10,000,000 shares 00,000,000 xxxres of preferred stock, without par value, of which no shares are outstanding, no shares have been designated and no shares are reserved for issuance. All of such outstanding shares of Common Stock were duly authorized and validly issued and are fully paid and non-assessable and are validly listed for trading on the NYSE. (b) Except for the Option, the Company Warrants and the options granted pursuant to the Option Plans or as set forth on Schedule 3.04(b) hereto, there are no authorized or outstanding (or any obligations to authorize or issue) Derivative Securities. (c) As of the date hereof, the Company and its Subsidiaries have no outstanding Indebtedness other than (i) Indebtedness outstanding pursuant to the Credit Agreement not in excess of $500,000,000 in principal amount in the aggregate, (ii) Senior Subordinated Notes with an aggregate principal amount of $625,000,000, (iii) inter-company Indebtedness among Subsidiaries of the Company or among Subsidiaries of the Company and the Company, and (iv) other Indebtedness not in excess of $25,000,000 in principal amount in the aggregate. A true, complete and correct copy of each of the Credit Agreement, the Indenture and each other instrument or agreement governing Indebtedness of the Company or any of its Subsidiaries the principal amount of which exceeds $10,000,000, including the respective exhibits and schedules thereto and any other material documents executed in connection therewith, has been delivered to the Investor. (d) Subject to the filing of the Certificates of Designations with the Secretary of State of the State of Delaware, the shares of Preferred Stock (other than the Option Shares or shares issuable in respect of the Option Shares) to be issued pursuant to this Agreement have been duly and validly authorized and, when issued as contemplated by this Agreement, will have been validly issued and will be fully paid and nonassessablenon-assessable. The Conversion Shares (other than shares issuable in respect of the Option Shares) have been duly and validly authorized and validly reserved for issuance, and when issued upon the conversion of the Senior Preferred Stock will have been validly issued and will be fully paid and non-assessable. Subject to receipt of the Series A Shareholder Approval, the Board Approval and the Option Approval, (i) the Option Shares to be issued pursuant to this Agreement will be duly and validly authorized and validly reserved for issuance and, when issued as contemplated by this Agreement, will have been validly issued and will be fully paid and non-assessable; and (ii) the Conversion Shares issuable in respect of the Option Shares will have been duly and validly authorized and validly reserved for issuance, and when issued upon the conversion of the Option Shares will have been validly issued and will be fully paid and non-assessable. Except as set forth in Schedule 3.04(d) hereto, the registration of the Senior Preferred Stock, Junior Shares, Conversion Shares, Dividend Shares or Debentures pursuant to the Registration Rights Agreement will not give rise to any registration rights on behalf of any Person under any agreement or instrument applicable to the Company (other than the Registration Rights Agreement). Except as set forth in Schedule 3.04(d) hereto, other than pursuant to the Registration Rights Agreement, no Person has any right to require the Company to register securities of the Company under the Securities Act, and there are no shareholder or similar agreements to which the Company is a party. Prior to the issuance thereof, the Debentures will have been duly and validly authorized by the Company and, upon execution and delivery thereof in accordance with the terms of the Senior Preferred Stock, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equity.

Capitalization; Securities. (a) As of the date hereof, the authorized capital stock of the Company consists of (i) 80,000,000 400,000,000 shares of Common Stock, of which 31,788,288 79,490,249 shares were outstanding as of July 13are outstanding, 1999, 6,034,079 3,614,621 are reserved for issuance under the Option Plans, 4,732,333 and 22,530,000 are reserved for issuance pursuant to the Company Warrants and 23,262 shares are reserved for issuance pursuant to the option granted to Xxxx X. Xxxxxxxx, which is disclosed on Schedule 3.04(d) heretoWarrants, and (ii) 10,000,000 2,000,000 shares of preferred stock, without par valuevalue $0.01 per share, of which no shares are outstanding, no shares have been designated and no shares are reserved for issuance. All of such outstanding shares of Common Stock were duly authorized and validly issued and are fully paid and non-assessable and are validly listed for trading on the NYSEassessable. (b) Except for the Company Warrants and options to purchase in the options granted aggregate 10,257,314 shares of Common Stock with an average exercise price of $22.25 per share pursuant to the Option Plans or as set forth on Schedule 3.04(b) heretoand the options to purchase Common Stock granted to Dr. Norman C. Payson pursuant to the CEO Agreement, there are no authorized or xxx xx xxxxxxxxxx xr outstanding (or any obligations to authorize or issue) Derivative Securities. (c) As of the date hereof, the The Company and its Subsidiaries have no outstanding Indebtedness other than (i) $100,000,000 of Indebtedness outstanding pursuant to the Credit Agreement not in excess of $500,000,000 in principal amount in the aggregate, (ii) Senior Subordinated Notes with an aggregate principal amount of $625,000,000, (iii) inter-company Indebtedness among Subsidiaries of the Company or among Subsidiaries of the Company and the Company, and (iv) other Indebtedness not in excess of $25,000,000 in principal amount in the aggregateBridge Agreement. A true, complete and correct copy of each of the Credit Bridge Agreement, the Indenture and each other instrument or agreement governing Indebtedness of the Company or any of its Subsidiaries the principal amount of which exceeds $10,000,000, including the respective exhibits and schedules thereto and any other material documents executed in connection therewith, has been delivered made available to the Investor. (d) Subject to the filing of the Certificates of Designations with the Secretary of State of the State of Delaware, the shares of Preferred Stock to be issued pursuant to this Agreement and issuable pursuant to the Series B Warrants have been duly and validly authorized and, when issued as contemplated by this Agreement, will have been validly issued and will be fully paid and nonassessable. The Conversion Shares have been duly and validly authorized and validly reserved for issuance, and when issued Agreement or upon the conversion exercise of the Senior Preferred Stock Series B Warrants, as the case may be, will have been validly issued and will be fully paid and non-assessable. Except as set forth in Schedule 3.04(d) heretoThe Warrant Shares have been duly and validly authorized and validly reserved for issuance and, when issued upon exercise of the Warrants, will have been validly issued and will be fully paid and non-assessable. The registration of the Senior Preferred StockSecurities, Junior Shares, Conversion Shares, Dividend Warrant Shares or Debentures pursuant to the Registration Rights Agreement will not give rise to any registration rights on behalf of any Person (other than the CEO as described in Exhibit H hereto) under any agreement or instrument applicable to the Company (other than the Registration Rights Agreement). Except as set forth in Schedule 3.04(d) hereto, other Other than pursuant to the Registration Rights Agreement, no Person has any right to require the Company to register securities of the Company under the Securities Act, and there are no shareholder or similar agreements to which the Company is a party, except as disclosed on Schedule 3.04(d) hereto. Prior To the Company's knowledge, there are no securities that the Company is required to the issuance thereof, the Debentures will register pursuant to any agreement listed on Schedule 3.04(d) hereto. The Warrants have been duly and validly authorized by the Company and, upon execution and delivery thereof in accordance with the terms of the Senior Preferred Stockwhen issued as contemplated by this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equity.

Capitalization; Securities. (a) As of the date hereof, the authorized capital stock of the Company consists of (i) 80,000,000 shares of Common Stock, of which 31,788,288 shares were outstanding as of July 13, 1999, 6,034,079 shares are reserved for issuance under the Option Plans, 4,732,333 shares are reserved for issuance pursuant to the Company Warrants and 23,262 shares are reserved for issuance pursuant to the option granted to Xxxx X. Xxxxxxxx, which is disclosed on Schedule 3.04(d) hereto, and (ii) 10,000,000 shares of preferred stock, without par value, of which no shares are outstanding, no shares have been designated and no shares are reserved for issuance. All of such outstanding shares of Common Stock were duly authorized and validly issued and are fully paid and non-assessable and are validly listed for trading on the NYSE. (b) Except for the Option, the Company Warrants and the options granted pursuant to the Option Plans or as set forth on Schedule 3.04(b) hereto, there are no authorized or outstanding (or any obligations to authorize or issue) Derivative Securities. (c) As of the date hereof, the Company and its Subsidiaries have no outstanding Indebtedness other than (i) Indebtedness outstanding pursuant to the Credit Agreement not in excess of $500,000,000 in principal amount in the aggregate, (ii) Senior Subordinated Notes with an aggregate principal amount of $625,000,000, (iii) inter-company Indebtedness among Subsidiaries of the Company or among Subsidiaries of the Company and the Company, and (iv) other Indebtedness not in excess of $25,000,000 in principal amount in the aggregate. A true, complete and correct copy of each of the Credit Agreement, the Indenture and each other instrument or agreement governing Indebtedness of the Company or any of its Subsidiaries the principal amount of which exceeds $10,000,000, including the respective exhibits and schedules thereto and any other material documents executed in connection therewith, has been delivered to the Investor. (d) Subject to the filing of the Certificates of Designations with the Secretary of State of the State of Delaware, the shares of Preferred Stock (other than the Option Shares or shares issuable in respect of the Option Shares) to be issued pursuant to this Agreement have been duly and validly authorized and, when issued as contemplated by this Agreement, will have been validly issued and will be fully paid and nonassessablenon-assessable. The Conversion Shares (other than shares issuable in respect of the Option Shares) have been duly and validly authorized and validly reserved for issuance, and when issued upon the conversion of the Senior Preferred Stock will have been validly issued and will be fully paid and non-assessable. Subject to receipt of the Series A Shareholder Approval, the Board Approval and the Option Approval, (i) the Option Shares to be issued pursuant to this Agreement will be duly and validly authorized and validly reserved for issuance and, when issued as contemplated by this Agreement, will have been validly issued and will be fully paid and non-assessable; and (ii) the Conversion Shares issuable in respect of the Option Shares will have been duly and validly authorized and validly reserved for issuance, and when issued upon the conversion of the Option Shares will have been validly issued and will be fully paid and non-assessable. Except as set forth in Schedule 3.04(d) hereto, the registration of the Senior Preferred Stock, Junior Shares, Conversion Shares, Dividend Shares or Debentures pursuant to the Registration Rights Agreement will not give rise to any registration rights on behalf of any Person under any agreement or instrument applicable to the Company (other than the Registration Rights Agreement). Except as set forth in Schedule 3.04(d) hereto, other than pursuant to the Registration Rights Agreement, no Person has any right to require the Company to register securities of the Company under the Securities Act, and there are no shareholder or similar agreements to which the Company is a party. Prior to the issuance thereof, the Debentures will have been duly and validly authorized by the Company and, upon execution and delivery thereof in accordance with the terms of the Senior Preferred Stock, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equity.