Common use of Capitalization; Valid Issuance of Shares Clause in Contracts

Capitalization; Valid Issuance of Shares. As of the date hereof, the authorized capital stock of the Company consists of 300,000,000 shares of Common Stock, of which 117,285,272 shares are issued and outstanding, and no shares are held by the Company as treasury shares, and 20,000,000 shares of preferred stock, of which no shares are issued and outstanding. All of such outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable. The Shares have been duly authorized and when issued pursuant to the terms hereof will be validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights of the shareholders of the Company or any other person. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the date hereof, the Company had outstanding warrants to purchase 13,761,269 shares of Common Stock, options to purchase 1,185,000 shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Plan. As of the date of this Agreement, except to the extent described in the preceding sentence and Schedule 4.3 attached hereto, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act (except the Registration Rights Agreement) and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Shares. Except as may be described in any documents which have been publicly filed by any of the Company's shareholders, to the Company’s knowledge, there are no agreements between the Company’s shareholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs.

Capitalization; Valid Issuance of Shares. As of the date hereof, the authorized capital stock of the Company consists of 300,000,000 20,000,000 shares of Common Stock, of which 117,285,272 6,008,033 shares are issued and outstanding, and no shares are held by the Company as treasury shares, and 20,000,000 1,000,000 shares of preferred stock, of which no shares are issued and outstanding. All of such outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable. The Shares have been duly authorized and when issued pursuant to the terms hereof will be validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights of the shareholders of the Company or any other person. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the date hereof, the Company had outstanding warrants to purchase 13,761,269 shares of Common Stock, options to purchase 1,185,000 shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Plan. As of the date of this Agreement, except to the extent described as set forth on Schedule 4.3 or disclosed in the preceding sentence and Schedule 4.3 attached heretoCompany’s Proxy Statement filed on October 9, 2007, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act (except the Registration Rights Agreement) and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Shares. Except as may be described in any documents which have been publicly filed by any of the Company's ’s shareholders, to the Company’s knowledge, there are no agreements between the Company’s shareholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs.

Capitalization; Valid Issuance of Shares. As of the date hereof, and immediately prior to the closing of the Company’s proposed acquisition of Target, the authorized capital stock of the Company consists of 300,000,000 shares of Common Stock, of which 117,285,272 188,488,472 shares are issued and outstanding, and no shares are held by the Company as treasury shares, and 20,000,000 shares of preferred stock, of which no shares are issued and outstanding. All of such outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable. The Shares have been duly authorized and when issued pursuant to the terms hereof will be validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights of the shareholders of the Company or any other person. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the date hereof, and immediately prior to the closing of the Company’s proposed acquisition of Target, the Company had outstanding warrants to purchase 13,761,269 8,161,542 shares of Common Stock, 8,752,026 shares issuable upon the conversion of the Company’s subordinated debt, options to purchase 1,185,000 1,815,000 shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 405,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Plan. As of the date of this Agreement, except to the extent described in the preceding sentence and Schedule 4.3 attached hereto, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act (except the Amended Registration Rights Agreement) ), and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holdersholders other than the Initial Securities Purchase Agreement) that will be triggered by the issuance of the Shares. Except (x) for the Restated Irrecvocable Proxy, (y) as set forth in Section 5.9 below, or (z) as may be described in any documents which have been publicly filed by any of the Company's ’s shareholders, to the Company’s knowledge, there are no agreements between the Company’s shareholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs. The Mxxxxxx Option Amendment has been executed and delivered by all parties thereto and is in full force and effect.

Capitalization; Valid Issuance of Shares. As of the date hereof, the authorized capital stock of the Company consists of 300,000,000 75,000,000 shares of Common Stock, of which 117,285,272 23,966,283 shares are issued and outstanding, and no 652,377 shares are held by the Company as treasury shares, and 20,000,000 2,265,167 shares of preferred stock, $.001 par value, all of which no shares are issued designated as Series A redeemable convertible preferred stock, and none of which are outstanding. All of such outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable. The Shares have been duly authorized and when issued pursuant to the terms hereof will be validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights of the shareholders of the Company or any other person. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the date hereof, the Company had outstanding warrants options to purchase 13,761,269 1,399,355 shares of Common Stock, options to purchase 1,185,000 as well as 2,086,769 shares of Common Stock that may be issued under its 2005 Employee Stock Option Plan, as well as 300,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Purchase Plan. As of the date of this Agreement, except to the extent described in the preceding sentence and Schedule 4.3 attached hereto, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act (except the Registration Rights Agreement) and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Shares. Except as may be described in any documents which have been publicly filed by any of the Company's shareholders, to the Company’s 's knowledge, there are no agreements between the Company’s 's shareholders with respect to the voting or transfer of the Company’s 's capital stock or with respect to any other aspect of the Company’s 's affairs.

Capitalization; Valid Issuance of Shares. As of the date hereof, the authorized capital stock of the Company consists of 300,000,000 40,000,000 shares of Common Stock, of which 117,285,272 7,575,019 shares are issued and outstanding, and no shares are held by the Company as treasury shares, and 20,000,000 10,000,000 shares of preferred stock, $.01 par value, none of which no shares are issued and outstanding. All of such outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable. The Shares have been duly authorized and when issued upon issuance pursuant to the terms hereof will be validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights of the shareholders of the Company or any other person. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the date hereof, the Company had outstanding options and warrants to purchase 13,761,269 973,050 shares of Common Stock, options to purchase 1,185,000 shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Plan. As of the date of this Agreement, except to the extent described in the preceding sentence and the Company’s Disclosure Schedule 4.3 attached hereto, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act (except the Registration Rights Agreement) and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Shares. Except as may be described in any documents which have been publicly filed by any of the Company's shareholders, to To the Company’s knowledge, there are no agreements between the Company’s shareholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs.

Capitalization; Valid Issuance of Shares. As of the date hereof, the The authorized capital stock of the Company consists of 300,000,000 50,000,000 shares of common stock, $0.01 par value per share (the "Common StockShares"), and 1,000,000 shares of which 117,285,272 shares "blank-check" preferred stock, $0.01 par value per share (the "Preferred Shares"). As of the date of this Agreement, there are (i) 15,740,857 Common Shares issued and outstanding, (ii) no Common Shares held in the treasury of the Company or held by any Subsidiary of the Company; (iii) 1,319,276 Common Shares reserved for issuance upon exercise of authorized but unissued Company Stock Options pursuant to the Option Plans; (iv) 2,313,155 Common Shares issuable upon exercise of outstanding Company Stock Options; (v) 300,000 Common Shares issuable upon exercise of the warrants listed in Section 3.2(c) of the Disclosure Schedule, and (vi) no Preferred Shares issued or outstanding. Section 3.2(c) of the Disclosure Schedule contains a complete and accurate list of all Company Stock Options outstanding pursuant to the Option Plans including the date of grant, name of option holder, exercise price and expiration date. Except as set forth in this Section 3.2(c), no shares are held by of capital stock or other equity securities of the Company as treasury sharesare issued, and 20,000,000 shares of preferred stock, of which no shares are issued and reserved for issuance or outstanding. All of such outstanding shares of Common capital stock of the Company are, and all shares which may be issued pursuant to the Stock are Plans will be when issued, duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights. The Series A Preferred Shares have been duly authorized and the Warrant, when issued, paid for and delivered in accordance with the terms of this Agreement, and the Series A Preferred Shares to be issued pursuant to the terms hereof Warrant, will be duly authorized, validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights rights. Except as set forth in Section 3.2(c) of the shareholders Disclosure Schedule, there are no outstanding bonds, debentures, notes or other indebtedness or other securities of the Company or any other personof its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company or such Subsidiary may vote. No Except as set forth in Section 3.2(c) of the Disclosure Schedule, there are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which any of them is bound obligating the Company or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity or voting securities of the Company are subject to preemptive rights or of any of its Subsidiaries or obligating the Company or any other similar rights of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. Other than the Company Stock Options or the warrants set forth in Section 3.2(c) of the shareholders Disclosure Schedule or as otherwise set forth in Section 3.2(c) of the Disclosure Schedule, (x) there are no outstanding contractual obligations, commitments, understandings or arrangements of the Company or any liens of its Subsidiaries to repurchase, redeem or encumbrances imposed through otherwise acquire or make any payment in respect of or measured or determined based on the actions value or failure to act market price of the Company. As of the date hereof, the Company had outstanding warrants to purchase 13,761,269 shares of Common Stock, options to purchase 1,185,000 shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Plan. As of the date of this Agreement, except to the extent described in the preceding sentence and Schedule 4.3 attached hereto, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its SubsidiariesSubsidiaries and (y) to the Knowledge of the Company, there are no irrevocable proxies with respect to shares of capital stock of the Company or any Subsidiary of the Company. Except as set forth in Section 3.2(c) of the Disclosure Schedule, there are no agreements or arrangements by pursuant to which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated would be required to register the sale of any of its Common Shares, Preferred Shares or their other securities under the 1933 Securities Act (except the Registration Rights Agreement) and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Shares. Except 1933, as may be described in any documents which have been publicly filed by any of the Company's shareholders, to the Company’s knowledge, there are no agreements between the Company’s shareholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairsamended.

Capitalization; Valid Issuance of Shares. As of the date hereof, and immediately prior to the closing of the Company’s proposed acquisition of Target, the authorized capital stock of the Company consists of 300,000,000 shares of Common Stock, of which 117,285,272 188,488,472 shares are issued and outstanding, and no shares are held by the Company as treasury shares, and 20,000,000 shares of preferred stock, of which no shares are issued and outstanding. All of such outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable. The Shares have been duly authorized and when issued pursuant to the terms hereof will be validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights of the shareholders of the Company or any other person. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the date hereof, and immediately prior to the closing of the Company’s proposed acquisition of Target, the Company had outstanding warrants to purchase 13,761,269 8,161,542 shares of Common Stock, 8,752,026 shares issuable upon the conversion of the Company’s subordinated debt, options to purchase 1,185,000 1,815,000 shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 405,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Plan. As of the date of this Agreement, except to the extent described in the preceding sentence and Schedule 4.3 attached hereto, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act (except the Amended Registration Rights Agreement) ), and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holdersholders other than the Initial Securities Purchase Agreement) that will be triggered by the issuance of the Shares. Except (x) for the Restated Irrecvocable Proxy, (y) as set forth in Section 5.9 below, or (z) as may be described in any documents which have been publicly filed by any of the Company's shareholders, to the Company’s knowledge, there are no agreements between the Company’s shareholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs. The Xxxxxxx Option Amendment has been executed and delivered by all parties thereto and is in full force and effect.

Capitalization; Valid Issuance of Shares. As of the date hereof, the The authorized capital stock of the Company consists of 300,000,000 20,000,000 shares of Common Stockcommon stock, of which 117,285,272 shares are issued and outstanding$0.001 par value per share (the "COMMON SHARES"), and no shares are held by the Company as treasury shares, and 20,000,000 1,000,000 shares of preferred stock, $0.001 par value per share (the "PREFERRED SHARES"). As of which no shares the date of this Agreement, there are (i) 6,249,767 Common Shares issued and outstanding, (ii) 1,921,299 Common Shares held in the treasury of the Company or held by any Subsidiary of the Company; (iii) 2,740,000 Common Shares reserved for issuance upon exercise of authorized but unissued Company Stock Options pursuant to the Option Plans; (iv) 1,827,810 Common Shares issuable upon exercise of outstanding Company Stock Options; and (v) no Preferred Shares issued or outstanding. Section 3.2(c) of the Disclosure Schedule contains a complete and accurate list of all Company Stock Options outstanding pursuant to the Option Plans including the date of grant, name of option holder, exercise price and expiration date. Except as set forth in this Section 3.2(c), no shares of capital stock or other equity securities of the Company are issued, reserved for issuance or outstanding. All of such outstanding shares of Common capital stock of the Company are, and all shares which may be issued pursuant to the Stock are Plans will be when issued, duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights. The Series A Preferred Shares have been duly authorized and the Warrants when issued pursuant to issued, paid for and delivered in accordance with the terms hereof of this Agreement, and the Series B Preferred Shares and Series C Preferred Shares to be issued upon exercise of the Warrants, as applicable, will be duly authorized, validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights rights. Except as set forth in Section 3.2(c) of the shareholders Disclosure Schedule, there are no outstanding bonds, debentures, notes or other indebtedness or other securities of the Company or any other personof its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company or such Subsidiary may vote. No Except as set forth in Section 3.2(c) of the Disclosure Schedule, there are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which any of them is bound obligating the Company or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity or voting securities of the Company are subject to preemptive rights or of any of its Subsidiaries or obligating the Company or any other similar rights of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. Other than the Company Stock Options or as otherwise set forth in Section 3.2(c) of the shareholders Disclosure Schedule, (x) there are no outstanding contractual obligations, commitments, understandings or arrangements of the Company or any liens of its Subsidiaries to repurchase, redeem or encumbrances imposed through otherwise acquire or make any payment in respect of or measured or determined based on the actions value or failure to act market price of the Company. As of the date hereof, the Company had outstanding warrants to purchase 13,761,269 shares of Common Stock, options to purchase 1,185,000 shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Plan. As of the date of this Agreement, except to the extent described in the preceding sentence and Schedule 4.3 attached hereto, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its SubsidiariesSubsidiaries and (y) to the Knowledge of the Company, there are no irrevocable proxies with respect to shares of capital stock of the Company beneficially owned by any officer or director of the Company or with respect to shares of capital stock of any Subsidiary of the Company. Except as set forth in Section 3.2(c) of the Disclosure Schedule, there are no agreements or arrangements by pursuant to which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated would be required to register the sale of any of its Common Shares, Preferred Shares or their other securities under the 1933 Securities Act (except the Registration Rights Agreement) and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Shares. Except 1933, as may be described in any documents which have been publicly filed by any of the Company's shareholders, to the Company’s knowledge, there are no agreements between the Company’s shareholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairsamended.

Capitalization; Valid Issuance of Shares. As of the date hereof, the authorized capital stock of the Company consists of 300,000,000 30,000,000 shares of Common Stock, of which 117,285,272 19,381,127 shares are issued and 17,512,280 are issued and outstanding, and no shares are held by the Company as treasury shares, and 20,000,000 5,000,000 shares of preferred stock, $.01 par value, of which no 300,000 shares are issued designated as Series B Junior Participating preferred stock, and none of which are outstanding. All of such outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable. The Shares have been duly authorized and when issued pursuant to the terms hereof will be validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights of the shareholders of the Company or any other person. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the date hereof, the Company had outstanding warrants to purchase 13,761,269 shares of Common Stock, options to purchase 1,185,000 1,086,664 shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 and had reserved 6,476,744 shares of restricted Common Stock for issuance upon conversion of those certain 7% senior unsecured convertible promissory notes issued under its 2005 Restricted Stock Planby the Company in connection with the April Securities Purchase Agreement. As of the date of this Agreement, except to the extent described in the preceding sentence and Schedule 4.3 attached hereto, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act (except the Registration Rights Agreement) and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Shares. Except as may be described in any documents which have been publicly filed by any of the Company's ’s shareholders, to the Company’s knowledge, there are no agreements between the Company’s shareholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs.

Capitalization; Valid Issuance of Shares. As of the date hereof, the authorized capital stock of the Company consists of 300,000,000 100,000,000 shares of Common Stock, of which 117,285,272 79,936,996 shares are issued and outstanding, and no shares are held by the Company as treasury shares, and 20,000,000 10,000,000 shares of preferred stock, of which no shares are issued and outstanding. All of such outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable. The Shares have been duly authorized and when issued pursuant to the terms hereof will be validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights of the shareholders stockholders of the Company or any other person. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders stockholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the date hereof, the Company had outstanding warrants to purchase 13,761,269 shares of Common Stock, options to purchase 1,185,000 shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Plan. As of the date of this Agreement, except to the extent as described in the preceding sentence and Schedule 4.3 attached hereto, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act (except the Xxxxxx Registration Rights Agreement, the BF Registration Rights Agreement, the EMS Registration Rights Agreement and the Tontine Registration Rights Agreement) and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holdersholders other than the Initial Securities Purchase Agreement, the August 2007 Securities Purchase Agreement and the January 2008 Securities Purchase Agreement) that will be triggered by the issuance of the Shares. Except as may be described in any documents which have been publicly filed by any of the Company's shareholders’s stockholders, to the Company’s knowledge, there are no agreements between the Company’s shareholders stockholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs.

Capitalization; Valid Issuance of Shares. As of the date hereof, the authorized capital stock of the Company consists of 300,000,000 20,000,000 shares of Common Stock, of which 117,285,272 6,008,033 shares are issued and outstanding, and no shares are held by the Company as treasury shares, and 20,000,000 1,000,000 shares of preferred stock, of which no shares are issued and outstanding. All of such outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable. The Shares have been duly authorized and when issued pursuant to the terms hereof will be validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights of the shareholders of the Company or any other person. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the date hereof, the Company had outstanding warrants to purchase 13,761,269 shares of Common Stock, options to purchase 1,185,000 shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Plan. As of the date of this Agreement, except to the extent described as set forth on Schedule 4.3 or disclosed in the preceding sentence and Schedule 4.3 attached heretoCompany’s Proxy Statement filed on October 9, 2007, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act (except the Registration Rights Agreement) and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Shares. Except as may be described in any documents which have been publicly filed by any of the Company's shareholders, to the Company’s knowledge, there are no agreements between the Company’s shareholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs.

Capitalization; Valid Issuance of Shares. As of the date hereof, the The authorized capital stock of the Company consists of 300,000,000 20,000,000 shares of common stock, $0.001 par value per share (the "Common Stock, of which 117,285,272 shares are issued and outstandingShares"), and no shares are held by the Company as treasury shares, and 20,000,000 1,000,000 shares of preferred stock, $0.001 par value per share (the "Preferred Shares"). As of which no shares the date of this Agreement, there are (i) 6,249,767 Common Shares issued and outstanding, (ii) 1,921,299 Common Shares held in the treasury of the Company or held by any Subsidiary of the Company; (iii) 2,740,000 Common Shares reserved for issuance upon exercise of authorized but unissued Company Stock Options pursuant to the Option Plans; (iv) 1,827,810 Common Shares issuable upon exercise of outstanding Company Stock Options; and (v) no Preferred Shares issued or outstanding. Section 3.2(c) of the Disclosure Schedule contains a complete and accurate list of all Company Stock Options outstanding pursuant to the Option Plans including the date of grant, name of option holder, exercise price and expiration date. Except as set forth in this Section 3.2(c), no shares of capital stock or other equity securities of the Company are issued, reserved for issuance or outstanding. All of such outstanding shares of Common capital stock of the Company are, and all shares which may be issued pursuant to the Stock are Plans will be when issued, duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights. The Series A Preferred Shares have been duly authorized and the Warrants when issued pursuant to issued, paid for and delivered in accordance with the terms hereof of this Agreement, and the Series B Preferred Shares and Series C Preferred Shares to be issued upon exercise of the Warrants, as applicable, will be duly authorized, validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights of the shareholders of the Company or any other person. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the date hereof, the Company had outstanding warrants to purchase 13,761,269 shares of Common Stock, options to purchase 1,185,000 shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Plan. As of the date of this Agreement, except to the extent described in the preceding sentence and Schedule 4.3 attached hereto, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act (except the Registration Rights Agreement) and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Sharesrights. Except as may be described set forth in any documents which have been publicly filed by any Section 3.2(c) of the Company's shareholders, to the Company’s knowledgeDisclosure Schedule, there are no agreements between the Company’s shareholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs.are

Capitalization; Valid Issuance of Shares. As of the date hereof, the authorized capital stock of the Company consists of 300,000,000 100,000,000 shares of Common Stock, of which 117,285,272 37,457,797 shares are issued and outstanding, and no shares are held by the Company as treasury shares, and 20,000,000 10,000,000 shares of preferred stock, of which no shares are issued and outstanding. All of such outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable. The Shares have been duly authorized and when issued pursuant to the terms hereof will be validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights of the shareholders stockholders of the Company or any other person. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders stockholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the date hereof, the Company had outstanding warrants to purchase 13,761,269 shares of Common Stock, options to purchase 1,185,000 shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Plan. As of the date of this Agreement, except to the extent described in the preceding sentence and Schedule 4.3 attached hereto, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act (except the Registration Rights Agreement) and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Shares. Except as may be described in any documents which have been publicly filed by any of the Company's shareholders’s stockholders, to the Company’s knowledge, there are no agreements between the Company’s shareholders stockholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs.

Capitalization; Valid Issuance of Shares. As of the date hereof, the authorized capital stock of the Company consists of 300,000,000 shares of Common Stock, of which 117,285,272 shares are issued and outstanding, and no shares are held by the Company as treasury shares, and 20,000,000 shares of preferred stock, of which no shares are issued and outstanding. All of such outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable. The Shares have been duly authorized and when issued pursuant to the terms hereof will be validly issued, fully paid and nonassessable and will not be subject to any encumbrances, preemptive rights or any other similar contractual rights of the shareholders of the Company or any other person. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the date hereof, the Company had outstanding warrants to purchase 13,761,269 shares of Common Stock, options to purchase 1,185,000 shares 1,185,000shares of Common Stock issued under its 2005 Stock Option Plan, as well as 300,000 shares of restricted Common Stock issued under its 2005 Restricted Stock Plan. As of the date of this Agreement, except to the extent described in the preceding sentence and Schedule 4.3 attached hereto, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act (except the Registration Rights Agreement) and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Shares. Except as may be described in any documents which have been publicly filed by any of the Company's ’s shareholders, to the Company’s knowledge, there are no agreements between the Company’s shareholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs.