Common use of Capitalization Clause in Contracts

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Company.

Capitalization. The authorized capital stock As of the Company date hereof, the authorized share capital of ICP consists of an unlimited number of ordinary shares and class A and B preference shares. As of the date of ICP's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1999, forty million seven hundred forty-seven thousand four hundred and seventy-one (a40,747,471) 180,000,000 Shares and (b) 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 ICP Shares were issued and outstanding, (ii) outstanding and no Class A or Class B preference shares of the preferred stock were issued and outstanding. As of the date hereof, (iii) no 2,043,000 ICP Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were are reserved for issuance pursuant to the Rights Agreementexercise of outstanding ICP Options granted under the Stock Option Plans. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Except for such ICP Options, there are no options, warrants or other rights, agreements or commitments of any character whatsoever requiring the issuance, sale or transfer by ICP of any shares of ICP (including the exercise prices ICP Shares) or any subsidiary of all such OptionsICP or any securities convertible into, or exchangeable or exercisable for, or otherwise evidencing a right to acquire, any shares of ICP (including the ICP Shares) or any subsidiary of ICP, nor are there any outstanding stock appreciation rights, phantom equity or similar rights, agreements, arrangements or commitments based upon the book value, income or other attribute of ICP or any subsidiary of ICP. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries ICP Shares have been duly authorized and validly issued and issued, are fully paid and nonassessable, non- assessable and are not subject to, nor were they issued in violation of, any preemptive rights, and all ICP Shares issuable upon exercise of outstanding stock options in accordance with their respective terms will be duly authorized and validly issued, fully paid and non-assessable and will not be subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Company.

Capitalization. The authorized capital stock of the Company currently consists of (a) 180,000,000 Shares 25,000,000 shares of Common Stock of which 11,246,699 shares were outstanding as of December 22, 1997, all of which are fully paid and nonassessable; and (b) 20,000,000 5,000,000 shares of preferred stockPreferred Stock, $.01 par value $0.01 per share. At the close value, of business on December 23, 2005 (the “Capital Structure Date”) which (i) 17,725,181 Shares were issued and 5,000 shares are designated as Series C Convertible Preferred Stock, none of which are outstanding, and (ii) no 10,000 shares will be designated as Series A Convertible Preferred Stock prior to the Closing Date (as such term is defined in Section 6 hereof). As of December 22, 1997, the Company had outstanding options entitling the holders thereof to purchase 2,068,319 shares of Common Stock and outstanding warrants entitling the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 holders thereof to purchase 1,038,167 shares of Series A participating preferred stock were reserved for issuance Common Stock. On the Closing Date there will be no material increase from December 22, 1997 in the number of shares of Common Stock outstanding other than pursuant to the Rights Agreementexercise of such options and/or warrants. The Company does not have outstanding any material amount of securities (or obligations to issue any such securities) convertible into, exchangeable for or otherwise entitling the holders thereof to acquire shares of Common Stock, except as disclosed above or in the Disclosure Documents or as set forth in Section 3.3 3(b) of the Company disclosure letter delivered to the Buyer at or before the execution of this Agreement (the "Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such OptionsLetter"). All issued and The outstanding shares of capital stock of the Company Common Stock and each of its Subsidiaries outstanding options, warrants and other securities to purchase Common Stock have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rightsissued. All None of the issued and such outstanding shares of capital stock or Common Stock, options, warrants and other equity interests of each securities has been issued in violation of the Subsidiaries preemptive rights of the Company are owned directly or indirectly by any security holder of the Company. Except The offers and sales of the outstanding shares of Common Stock and options, warrants and other rights to acquire Common Stock were at all relevant times either registered under the 1933 Act and applicable state securities laws or exempt from such requirements. No holder of any of the Company's securities has any rights, "demand," "piggy-back" or otherwise, to have such securities registered by reason of the intention to file, filing or effectiveness of the Registration Statement (as defined in the Registration Rights Agreement), except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv3(b) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the CompanyDisclosure Letter.

Capitalization. The As of the Closing, without giving effect to the transactions contemplated hereby, the authorized capital stock of the Company consists Caldera Systems will consist of (a) 180,000,000 Shares 75,000,000 shares of common stock, of which 20,144,904 shares will be issued and (b) 20,000,000 outstanding and 25,000,000 shares of preferred stockstock of which 6,596,146 shares have been designated Series A Preferred Stock, par value $0.01 per share. At the close all of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were which are issued and outstanding, and 5,000,000 shares have been designated Series B Preferred Stock, all of which are isssued and outstanding. As of the Closing, other than the shares described in the preceding sentence, (ii) no the conversion privileges of the Series A Preferred Stock and the Series B Preferred Stock of Caldera, and (iii) currently outstanding options to purchase 5,288,882 shares of the preferred common stock were of Caldera granted to employees and members of the Board of Directors of Caldera pursuant to Caldera's 1998 Stock Option Plan and 1999 Omnibus Stock Incentive Plan, Caldera Systems has not issued any warrants, options, rights (including, without limitation, conversion or preemptive rights and outstandingrights of first refusal), (iii) no Shares were held by proxy or stockholder agreements or agreements of any kind for the Company in purchase or acquisition from Caldera Systems, or any of its treasurySubsidiaries, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 any shares of Series A participating preferred its, or any of its Subsidiaries', capital stock were reserved or other securities, including, without limitation, any securities convertible into or exercisable or exchangeable for issuance pursuant such shares or any warrants, options or other rights to acquire any such convertible securities. As of the Closing, and after giving effect to the Rights Agreement. Section 3.3 transactions contemplated hereby, all of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company Caldera Systems and each of its Subsidiaries will have been duly and validly authorized and validly issued and are issued, fully paid and nonassessable, nonassessable and are not subject to any preemptive rights. All of the issued rights and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Companywill have been offered, issued, sold and delivered in compliance with applicable federal and state securities laws. Except as set forth in this Section 3.3the Caldera Systems Articles of Incorporation and in that certain Amended and Restated Investor Rights Agreement, at dated as of December 30, 1999, among Caldera Systems and the close shareholders of business on Caldera Systems who are party thereto (the Capital Structure Date"Caldera Systems Investor Rights Agreement"), there are no shares preemptive rights, rights of first refusal, put or call rights or obligations or anti-dilution rights with respect to the issuance, sale or redemption of Caldera Systems's capital stock or other equity securities of the Company were issued, reserved for issuance or outstandingsecurities. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company Caldera Systems is not a party or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates understanding, and, to the Company to issuebest of Caldera Systems's knowledge, deliver, sell there is no agreement or transfer, understanding between any persons that affects or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting or giving of written consents with respect to any shares security or the voting by a director of capital stock of the CompanyCaldera Systems.

Capitalization. The As of the date hereof, the authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 35,000,000 shares of capital stock, of which 30,000,000 shares are designated Common Stock and 5,000,000 shares are designated preferred stock. As of December 6, par value $0.01 per share. At the close of business on December 232001, 2005 (the “Capital Structure Date”) there were approximately (i) 17,725,181 Shares were 19,571,796 shares of Common Stock issued and outstanding, (ii) no shares of the preferred stock were Preferred Stock issued and outstanding, (iii) no Shares were held 708,700 shares of Common Stock reserved for issuance under the Company’s 2001 Stock Option Plan, including 3,510,470 shares issuable upon exercise of outstanding stock options issued by the Company in its treasuryto employees, consultants and directors of the Company, (iv) 1,345,594 Shares were 664,072 shares of Common Stock reserved for issuance upon exercise of outstanding Options granted under warrants issued by the Stock Plans Company and (vvi) 200,000 shares of Series A participating preferred stock were reserved except for issuance the rights issuable pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding no other shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessableor options, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock warrants or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party rights to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any acquire shares of capital stock of the Company or (z) relates to the voting of any shares of securities convertible into capital stock of the Company. All outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable, free from any liens or any other encumbrances created by the Company with respect to the issuance and delivery thereof and not subject to preemptive rights. Other than as disclosed in the SEC Documents, except as set forth above, there are no outstanding rights, options, warrants, preemptive rights, rights of first refusal agreements, commitments or similar rights for the purchase or acquisition from the Company of any securities of the Company. The Shares to be sold pursuant to the Agreements have been duly authorized, and when issued and paid for in accordance with the terms of the Agreements will be duly and validly issued, fully paid and nonassessable, free and clear of all pledges, liens, encumbrances and other restrictions (other than those arising under federal or state securities laws as a result of the private placement of the Shares to the Investors). Except for the rights issuable pursuant to the Rights Agreement, no preemptive right, co-sale right, right of first refusal or other similar right exists with respect to the Shares or the issuance and sale thereof. No further approval or authorization of any stockholder, the Board of Directors of the Company or others is required for the issuance and sale of the Shares. Except as set forth in the SEC Documents, no holder of any of the securities of the Company has any rights (“demand,” “piggyback” or otherwise) to have such securities registered by reason of the intention to file, filing or effectiveness of a Registration Statement (as defined in Section 7.1 hereof).

Capitalization. The As of the date hereof, the authorized capital stock of the Company consists of (aA) 180,000,000 30,000,000 Common Shares and (bB) 20,000,000 5,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 stock (the “Capital Structure Date”) "Preferred Shares"). As of the date hereof, (i) 17,725,181 5,745,599 Common Shares were are issued and outstanding, (ii) no shares of the preferred stock were Preferred Shares are issued and outstanding, and (iii) no more than 1,400,000 Common Shares were held by are reserved for future issuance pursuant to outstanding Company Options, pursuant to which options to purchase 733,000 shares are exercisable as of the date hereof and options to purchase zero (0) shares become exercisable on or after that date at prices below the Per Share Price. No other capital stock of the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance is authorized or issued other than shares that may be issued upon the exercise of outstanding Options options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options1994 Plan. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been Common Shares are duly authorized and authorized, validly issued and are issued, fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Companynon-assessable. Except as set forth in the Company Securities Filings (as hereinafter defined) filed prior to the date of this Section 3.3Agreement or as otherwise contemplated by this Agreement, at as of the close date hereof, there are no outstanding rights, subscriptions, warrants, puts, calls, unsatisfied preemptive rights, options or other agreements of business on any kind relating to any of the Capital Structure Dateoutstanding, no authorized but unissued shares of the capital stock or any other security of the Company, and there is no authorized or outstanding security of any kind convertible into or exchangeable for any such capital stock or other equity securities security. Except as disclosed in the Company Securities Filings filed prior to the date of this Agreement, there are no obligations, contingent or other, of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the any Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party Subsidiary to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, acquire any shares of Common Shares or the capital stock ofof any Company Subsidiary or to provide funds to or make any investment (in the form of a loan, capital contribution or other equity interests in, the otherwise) in any such Company Subsidiary or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Companyentity.

Capitalization. The On the date hereof, the authorized capital stock of the Company consists of: (i) 20,000,000 shares of Common Stock, par value $0.001 per share, of which 1,500,000 shares are issued and outstanding (a) 180,000,000 Shares including 500,000 shares held in escrow pursuant to that certain Escrow Agreement of even date herewith entered into by and between the Company, the Principal Stockholders, and Boylan, Brown, Code, Vigdor & Wilson, LLP, as escrow agxxx); and (bxx) 20,000,000 5,000,000 shares of preferred stock, par value $0.01 0.001 per share. At the close , none of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were which are issued and outstanding, (ii. Schedule 3(b) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter attached hereto sets forth a complete list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares holders of capital stock of the Company and a complete list of all options, warrants, notes, or any other rights or instruments which would entitle the holder thereof to acquire shares of the Common Stock or other equity interests in the Company upon conversion or exercise, setting forth for each such holder the type of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessablesecurity, number of equity shares covered thereunder, the exercise or conversion price thereof, the vesting schedule thereof (if any), and the issuance date and expiration date thereof. Other than as disclosed in Schedule 3(b) attached hereto, there are not no outstanding rights, agreements, arrangements or understandings to which the Company is a party (written or oral) which would obligate the Company to issue any equity interest, option, warrant, convertible note, or other types of securities or to register any shares in a registration statement filed with the Commission. Other than disclosed in Schedule 3(b) attached hereto, there is no agreement, arrangement or understanding between or among any entities or individuals which affects, restricts or relates to voting, giving of written consents, dividend rights or transferability of shares with respect to any voting shares of the Company, including without limitation any voting trust agreement or proxy. Schedule 3(b) attached hereto contains a complete and accurate schedule of all the shares subject to "lock-up" or similar agreement or arrangement by which any preemptive rightsequity shares are subject to resale restrictions and the Company has provided the Purchaser complete and accurate copies of all such agreements, which agreements are in full force and effect. All Except as set forth in Schedule 3(b) attached hereto, there are no outstanding obligations of the issued and Company to repurchase, redeem or otherwise acquire for value any outstanding shares of capital stock or other equity ownership interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or to provide funds to or make any investment (zin the form of a loan, capital contribution or otherwise) relates in any other entity. There are no anti-dilution or price adjustment provisions regarding any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the voting of any shares of capital stock issuance of the CompanySecurities (as defined below).

Capitalization. The As of the date hereof and immediately prior to the Closing, (i) the authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 28,000,000 shares of preferred stock, par value $0.01 per share. At the close which includes 3,000,000 shares of business on December 23Preferred Stock, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, 25,000,000 shares of Common Stock; (ii) no shares of the preferred stock were issued and (including Preferred Stock) of the Company are outstanding, ; (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were 600,000 shares of Common Stock are reserved for issuance upon the exercise of outstanding Options granted under options issued pursuant to the Company's 1996 Stock Plans Option Plan (the "Stock Option Plan") and 3,744,225 shares of Common Stock are reserved for issuance upon the exercise of warrants and options; (iv) 833,333 shares of Common Stock are reserved for issuance upon the conversion of the Preferred Stock and 833,333 shares of Common Stock are reserved for issuance upon the exercise of the Warrants; (v) 200,000 8,708,846 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights AgreementCommon Stock are outstanding; and (vi) 55,672 shares of Common Stock are held in treasury. Section 3.3 All of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries Common Stock have been duly authorized and validly issued and are fully paid and nonassessablenon-assessable and were issued in compliance with all applicable Federal and state laws concerning the issuance of securities. The rights, preferences, privileges and are not subject to any preemptive rights. All restrictions of the issued Preferred Stock and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company Warrants are owned directly or indirectly by the Company. Except as set forth in this Section 3.3the Certificate of Amendment and Warrant Certificate, at respectively. Except for the close Stock Option Plan and the transactions contemplated hereby and except as set forth in Schedule 3.2 hereto, there are no outstanding options, warrants, rights (including registration, conversion or preemptive rights and rights of business on the Capital Structure Datefirst refusal), no shares of capital stock proxy or shareholders agreements or other equity agreements or arrangements of the Company or any Subsidiary granted to or with any Person to purchase or acquire or otherwise relating to any securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security Subsidiary or any securities convertible or exercisable for or exchangeable into any capital stock ofsuch securities. Without limiting the generality of the foregoing and except as provided in the Registration Rights Agreement, or other equity interest in, the Company, (x) obligates neither the Company nor any Subsidiary has granted or agreed to grant any of its Subsidiaries registration rights, including piggyback rights, to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the CompanyPerson.

Capitalization. The authorized capital stock of the Company consists as of (a) 180,000,000 Shares and (b) 20,000,000 June 30, 2000 consisted of 50,000,000 shares of preferred stock, Common Stock (par value $0.01 $ .001 per share. At the close ), 12,804,355 shares of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were which are issued and outstanding, (ii) no and 5,000,000 shares of the preferred stock were Preferred Stock (par value $ .001 per share), 5,000 shares of which are designated Series A Preferred Stock, all of which are issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 3,327 shares of which are designated Series A participating preferred B Preferred Stock, all of which are issued and outstanding. The Company has not issued any capital stock were reserved for issuance since June 30, 2000 other than pursuant to the Rights AgreementCompany's employee benefit plans. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding OptionsThe Shares to be sold pursuant to this Agreement have been duly authorized, including the exercise prices of all such Options. All and when issued and paid for in accordance with the terms of this Agreement, will be duly and validly issued, fully paid and nonassessable. The outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, have been issued in compliance with all applicable federal and are state securities laws, and were not subject to issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. Except as set forth in or contemplated by the Exchange Act Documents, there are no outstanding rights (including, without limitation, preemptive rights. All of the issued and outstanding ), warrants or options to acquire, or instruments convertible into or exchangeable for, any unissued shares of capital stock or other equity interests interest in the Company, or any contract, commitment, agreement, understanding or arrangement of each any kind to which the Company is a party and relating to the issuance or sale of any capital stock of the Subsidiaries Company, any such convertible or exchangeable securities or any such rights, warrants or options, except such as have been waived. Without limiting the foregoing, no preemptive right, co-sale right, right of first refusal or other similar right exists with respect to the issuance and sale of the Company are owned directly or indirectly by the CompanyShares, except such as have been waived. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of Amended and Restated Investors' Rights Agreement by and among the Company were issuedand certain stockholders, reserved for issuance or outstanding. Since as amended to date (the close of business on "Investors' Rights Agreement"), and the Capital Structure DateAmended and Restated Development, no shares of capital stock or other equity securities of Manufacturing and Marketing Agreement between the Company have been issued and Baxtxx Xxxlthcare Corporation dated June 30, 1998, there are no stockholders agreements or reserved for issuance or become outstanding, other than Shares described in clause (iv) of voting agreements with respect to the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Common Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock affiliate of the Company or (z) relates to the voting of any shares of capital stock of the Companyis a party.

Capitalization. The authorized capital stock capitalization of the Company consists of (a) 180,000,000 Shares is as set forth in the Registration Statement, the Pricing Disclosure Package and (b) 20,000,000 shares of preferred stock, par value $0.01 per sharethe Final Prospectus under the heading “Capitalization”. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) no shares All of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessablenon-assessable. The Offered Securities have been duly authorized and, when issued and paid for as contemplated herein, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the Offered Securities are not and will not be subject to the preemptive rights of any preemptive rights. All holders of any security of the issued Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Offered Securities have been duly and validly taken. None of the outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly were issued in violation of any preemptive rights, rights of first refusal or indirectly by other similar rights to subscribe for or purchase securities of the Company. Except as set forth disclosed in this Section 3.3the Registration Statement, at the close Pricing Disclosure Package and the Final Prospectus, there are no authorized or outstanding options, warrants, preemptive rights, rights of business on the Capital Structure Date, no shares of capital stock first refusal or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party rights to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold instruments convertible into or transferred, exchangeable or repurchased, redeemed or otherwise acquiredexercisable for, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts subsidiaries. All of the transfer of any outstanding shares of capital stock of the Company of, or (z) relates to the voting of any shares of capital stock other equity interest in, each of the Company’s subsidiaries (i) have been duly authorized and validly issued, (ii) are fully paid and non-assessable (except as such non-assessability may be affected by Sections 18-303, 18-607 and 18-803 of the Delaware Limited Liability Company Act) and (iii) are owned by the Company, directly or through the Company’s subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, charge, claim or restriction on voting or transfer (collectively, “Liens”).

Capitalization. The authorized capital stock of the Company NHP consists of 25,000,000 shares of NHP Common Stock. As of March 7, 1997, (a) 180,000,000 Shares and (b) 20,000,000 12,652,439 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares NHP Common Stock were issued and outstanding, all of which were validly issued, fully paid and nonassessable; and (iib)(i) no 1,270,750 shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares NHP Common Stock were reserved for issuance upon the exercise of outstanding Options stock options granted under pursuant to the 1990 Stock Plans Option Plan of NHP Incorporated, the 1995 Incentive Stock Option Plan of NHP Incorporated, the stock option agreement, dated as of May 1, 1996, between NHP and Xxxxxxx X. Xxxxxxxx, and the stock option agreement, dated as of August 18, 1995, between NHP and J. Xxxxxxxx Xxxxxx III (collectively, the "NHP OPTION PLANS"), and (vii) 200,000 398,250 shares of Series A participating preferred stock NHP Common Stock were reserved for issuance pursuant to options available for grant under the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the CompanyNHP Option Plans. Except as set forth in this Section 3.3above, at the close as of business on the Capital Structure DateMarch 7, 1997, no shares of capital stock or other equity voting securities of the Company NHP were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Dateoutstanding and, since such date, no shares of capital stock or other equity voting securities of the Company or options in respect thereof have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued except upon the exercise of outstanding Options granted options (the "NHP STOCK OPTIONS") issued under the Stock PlansNHP Option Plans outstanding on March 7, 1997. Except for the NHP Stock Options, there are not now, and at the Closing there will not be, any NHP Options. All shares of NHP Common Stock subject to issuance as described aforesaid, upon issuance on the terms and conditions specified in this Sectionthe instruments pursuant to which they are issuable, the Company is not party will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual obligations of NHP or any of its subsidiaries to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, acquire any shares of the capital stock of, or other equity interests in, the Company NHP Common Stock or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of NHP or any of its subsidiaries, or make any material investment (in the Company form of a loan, capital contribution or (zotherwise) relates to the voting in any subsidiary of NHP or any shares other Person, other than a wholly-owned subsidiary of NHP. Each outstanding share of capital stock of the Companyeach Material Subsidiary of NHP is duly authorized, validly issued, fully paid and nonassessable and each such share owned by NHP or any subsidiary of NHP is owned free and clear of any Liens.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 150,000,000 shares of Company Common Stock. The Company does not have any authorized or outstanding shares of preferred stock. As of the date hereof, par value $0.01 per share. At the close (a) 89,363,767 shares of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were Company Common Stock are issued and outstanding, (ii) no shares all of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries which have been duly authorized and validly issued issued, and are fully paid and nonassessable, and (b) 9,152,497 shares of Company Common Stock are not subject to reserved for issuance upon the exercise of outstanding Company Options or exercise, settlement or conversion of any preemptive rights. All Company RSU Awards or any other equity-based awards outstanding under the Company Stock Plans, (c) 71,569 shares of Company Common Stock are held in the treasury of the issued Company, and outstanding (d) 1,446,885 shares of capital stock Company Common Stock are reserved for issuance and available for the future grant of equity-based awards under the Company Stock Plans. There are no bonds, debentures, notes or other equity interests of each indebtedness or, except as described in the immediately preceding sentence, securities of the Subsidiaries Company, in each case 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 are owned directly or indirectly by the Companymay vote. Except as set forth in this Section 3.32.3, at as of the close of business on the Capital Structure Datedate hereof, no shares of capital stock or other equity voting securities of the Company were are issued, reserved for issuance or outstanding. Since outstanding and, as of the close of business on the Capital Structure Datedate hereof, no shares of capital stock or other equity voting securities of the Company have been are obligated by the Company to be issued or reserved for issuance or become outstanding, outstanding after the date hereof other than Shares described in clause (iv) upon exercise of the second sentence Company Options or exercise, settlement or conversion of this Section 3.3 that have been issued upon the exercise of outstanding Options granted any Company RSU Awards or any other equity-based awards under the Company Stock PlansPlans outstanding as of the date hereof or under the ESPP. Except as described set forth in this SectionSection 2.3, as of the Company is not party date hereof, there are no Options relating to the issued or unissued capital stock of any outstanding optionof the Acquired Corporations, warrant, call, subscription or other right (including obligating any preemptive right), agreement or commitment which (w) obligates of the Company Acquired Corporations to issue, deliver, grant or sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security securities convertible into, or exercisable for or exchangeable into any capital stock offor, or other equity interest interests in, the Company, (x) obligates the Company or any of its Subsidiaries Subsidiaries. Since September 29, 2007 through the date of this Agreement, the Company has not issued any shares of its capital stock or Options in respect thereof, except for the issuance of (a) Company RSU Awards and Company Options in the ordinary course of business and (b) Company Common Stock issued upon the valid exercise of Company Options or exercise, settlement or conversion of Company RSU Awards or other equity-based awards under the Company Stock Plans. All shares of Company Common Stock subject to issueissuance under the Company Stock Plans will, grantupon issuance on the terms and conditions specified in the respective Company Stock Plans pursuant to which they are issuable, extend be duly authorized, validly issued, fully paid and nonassessable. None of the Acquired Corporations has any Contract or enter into other obligation to repurchase, redeem or otherwise acquire any such option, warrant, call, right, security, commitment, contract, arrangement shares of Company Common Stock or undertaking, (y) restricts the transfer any capital stock of any shares of the Company’s Subsidiaries, or make any investment (in the form of a loan, capital contribution or otherwise) in any of the Company’s Subsidiaries or any other Person. Each outstanding share of capital stock of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and is owned by the Company or (z) relates to by the voting applicable Subsidiary of the Company free and clear of all Encumbrances. None of the outstanding equity securities or other securities of any shares of capital stock the Acquired Corporations was issued in violation of the Securities Act or any other Legal Requirement. None of the Acquired Corporations owns, or has any Contract or other obligation to acquire, any equity securities or other securities of any Person (other than Subsidiaries of the Company) or any direct or indirect equity or ownership interest in any other business. None of the Acquired Corporations is or has ever been a general partner of any general or limited partnership. Each Company Option or other right to acquire Company Common Stock or other equity of the Company has at all times been properly accounted for in accordance with GAAP in the Company’s audited financial statements.

Capitalization. The As of the date hereof, the authorized capital stock of the Company consists of (ai) 180,000,000 Shares and (b) 20,000,000 150,000,000 shares of preferred stockCommon Stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were which 93,649,589 shares are issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were are reserved for issuance pursuant to the Rights Agreement. Section 3.3 Company’s stock option plans, no shares are reserved for issuance pursuant to securities (other than the Notes and the Warrants) exercisable for, or convertible into or exchangeable for shares of Common Stock and 30,833,333 shares are reserved for issuance upon conversion of the Company Disclosure Letter sets forth a list Notes and the Additional Notes (as defined in Section 4(l)) and exercise of the Warrants (subject to adjustment pursuant to the Company’s outstanding Optionscovenant set forth in Section 4(h) below); (ii) 5,100,000 shares of Class A Convertible Preferred Stock, including the exercise prices of all such Optionswhich 5,100,000 shares are issued and outstanding; and (iii) 5,100,000 shares of Class B Convertible Preferred Stock, of which 5,100,000 shares are issued and outstanding. All issued of such outstanding shares of capital stock are, or upon issuance will be, duly authorized, validly issued, fully paid and outstanding nonassessable. No shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to preemptive rights or any preemptive rights. All other similar rights of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries shareholders of the Company are owned directly or indirectly by any liens or encumbrances imposed through the actions or failure to act of the Company. Except as set forth disclosed in Schedule 3(c), as of the effective date of this Section 3.3Agreement, at the close (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of business on the Capital Structure Datefirst refusal, no shares of capital stock agreements, understandings, claims or other equity securities commitments or rights of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfercharacter whatsoever relating to, or repurchase, redeem securities or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security rights convertible or exercisable for into or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of for any shares of capital stock of the Company or (z) relates any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to the voting of any issue additional shares of capital stock of the Company or any of its Subsidiaries, (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 Notes, the Warrants, the Conversion Shares or Warrant Shares. The Company has furnished to the Buyer true and correct copies of the Company’s Certificate of Incorporation as in effect on the date hereof (“Certificate of Incorporation”), the Company’s By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities convertible into or exercisable for Common Stock of the Company and the material rights of the holders thereof in respect thereto. The Company shall provide the Buyer with a written update of this representation signed by the Company’s Chief Executive or Chief Financial Officer on behalf of the Company as of the Closing Date.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 shares 100,000,000 Company Shares. As of preferred stockthe date of this Agreement, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 37,480,000 Company Shares were issued and outstanding, (ii) no shares of the preferred stock warrants to purchase an additional 1,166,996 Company Shares were issued and outstanding, and no Company Shares were held in the treasury of the Company. Section 2.2 of the Disclosure Schedule sets forth a complete and accurate list of (i) all stockholders of the Company, indicating the number and class of Company Shares held by each stockholder, (ii) all outstanding Options and Warrants, indicating (A) the holder thereof, (B) the number of Company Shares subject to each Option and Warrant, (C) the exercise price, date of grant, vesting schedule and expiration date for each Option or Warrant, and (D) any terms regarding the acceleration of vesting, and (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans all stock option plans and (v) 200,000 shares of Series A participating preferred other stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list or equity-related plans of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares Company Shares are, and all Company Shares that may be issued upon exercise of Options or Warrants will be (upon issuance in accordance with their terms), duly authorized, validly issued, fully paid, nonassessable and free of all preemptive rights. Other than the Options and Warrants listed in Section 2.2 of the Disclosure Schedule, there are no outstanding or authorized options, warrants, rights, agreements or commitments to which the Company is a party or which are binding upon the Company providing for the issuance or redemption of any of its capital stock. There are no outstanding or authorized stock appreciation, phantom stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by similar rights with respect to the Company. Except as set forth in this Section 3.3There are no agreements to which the Company is a party or by which it is bound with respect to the voting (including without limitation voting trusts or proxies), at registration under the close Securities Act, or sale or transfer (including without limitation agreements relating to pre-emptive rights, rights of business on the Capital Structure Datefirst refusal, no shares co-sale rights or “drag-along” rights) of capital stock or other equity any securities of the Company were issued, reserved for issuance or outstandingCompany. Since To the close of business on the Capital Structure Date, no shares of capital stock or other equity securities knowledge of the Company have been issued or reserved for issuance or become outstandingCompany, there are no agreements among other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Sectionparties, to which the Company is not a party to any outstanding optionand by which it is not bound, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates with respect to the voting (including without limitation voting trusts or proxies) or sale or transfer (including without limitation agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any shares of capital stock securities of the Company. All of the issued and outstanding Company Shares were issued in compliance with applicable federal and state securities laws.

Capitalization. The As of the date of this Agreement, the authorized capital stock of the Company consists of (a) 180,000,000 Shares 100,000,000 shares of Common Stock and (b) 20,000,000 10,000,000 shares of preferred stock, par value $0.01 0.001 per share. At As of the close date of business on December 23this Agreement, 2005 (the “Capital Structure Date”a) (i) 17,725,181 Shares were 46,376,004 shares of Common Stock are issued and outstanding, (iib) 45,731 shares of Common Stock are issued and held in the treasury of the Company, (c) no shares of the preferred stock were issued and outstandingare designated as Preferred Stock, (iiid) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were 10,327,905 shares of Common Stock are reserved for issuance upon exercise of outstanding Options granted options to purchase the Common Stock under the Stock Plans Company's stock option plans and employee stock purchase plan and (ve) 200,000 1,149,615 shares of Series A participating preferred stock were Common Stock have been reserved for issuance upon the exercise of warrants to purchase Common Stock. The Shares and the Warrants to be sold pursuant to this Agreement and the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding OptionsWarrant Shares have been duly authorized, including the exercise prices of all such Options. All and when issued and paid for in accordance with the terms of this Agreement and the Warrants, will be duly and validly issued, fully paid and nonassessable. The outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, have been issued in compliance with all federal, state and are foreign securities laws and were not subject to issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. Except as set forth in or contemplated by the Agreements and the Warrants, there are no outstanding rights (including, without limitation, preemptive rights. All of the issued and outstanding ), warrants or options to acquire, or instruments convertible into or exchangeable for, any unissued shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by interest in the Company. Except as set forth in this Section 3.3, at the close or any contract, commitment, agreement, understanding or arrangement of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, any kind to which the Company is not a party and relating to any outstanding option, warrant, call, subscription the issuance or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer sale of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Company, any such convertible or exchangeable securities or any such rights, warrants or options. Without limiting the foregoing, no preemptive right, co-sale right, right of first refusal or other similar right exists with respect to the issuance and sale of the Shares and the Warrants or the issuance of the Warrant Shares. Other than Voting Agreements substantially in the form attached hereto as EXHIBIT H, there are no stockholder agreements, voting agreements or other similar agreements with respect to the Common Stock to which the Company is a party.

Capitalization. The authorized capital stock of the Company consists is, -------------- as of the date hereof, and will be, as of the Effective Date, $5,500,000, consisting of one class and series of Ordinary Shares divided into 500,000,000 shares of $.01 par value, and one class and series of Preference Shares divided into 50,000,000 shares of $.01 par value (a) 180,000,000 "Preference Shares"). The rights, privileges and preferences of the Ordinary Shares and (b) 20,000,000 shares Preference Shares are as stated in the Company's Amended and Restated Memorandum of preferred stockAssociation. As of December 31, par value $0.01 per share. At the close of business on December 231997, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares there were issued and outstandingoutstanding 48,228,588 Ordinary Shares, (ii) no Preference Shares and no other shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Optionscapital stock. All such issued and outstanding shares of capital stock of the Company Ordinary Shares and each of its Subsidiaries Preference Shares have been duly authorized and validly issued and issued, are fully paid and nonassessable, and were issued in compliance with all applicable state and federal securities laws. As of December 31, 1997, there were no outstanding options, warrants or other rights to purchase or otherwise acquire equity securities of the Company, securities convertible into or exchangeable for equity securities of the Company, options, warrants or other rights to purchase __________ [*] Confidential Treatment Requested. or otherwise acquire any such convertible or exchangeable securities, or agreements to issue or grant any of the foregoing (collectively, "Rights"), other than those set forth on Schedule 4.1. Since December 31, 1997, the Company has not issued any additional Ordinary Shares (except upon exercise of outstanding Rights listed on Schedule 4.1), Preference Shares or other capital stock and the Company has not issued or granted any Rights (except as set forth on Schedule 4.1). All Rights listed on Schedule 4.1 have been duly authorized and validly issued, are not subject fully paid and nonassessable (except as to the payment of any exercise price for the underlying securities) and were issued in compliance with all applicable state and federal securities laws. To the best knowledge of the Company, other than the Voting Agreement, there are no voting trusts, voting agreements, irrevocable proxies or other agreements or understandings with respect to any preemptive rights. All of the issued and outstanding voting shares of capital stock or other equity interests of each of the Subsidiaries Company. The Company has reserved: (i) 9.1 million Ordinary Shares for issuance to employees, officers, directors, consultants and agents of the Company are owned directly pursuant to any employee or indirectly consultant stock offering, plan or arrangement approved by the CompanyBoard of Directors of the Company (all of which are set forth on Schedule 4.1) and (ii) and approximately 1.2 million Ordinary Shares for issuance upon exercise of the Warrants. Except as set forth above in this Section 3.3, at the close of business on the Capital Structure Date4.1(a)(ii), no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstandingoutstanding as of December 31, 1997. Since Other than the close Rights listed on Schedule 4.1, there are no preemptive rights, rights of business on first refusal, participation rights or other similar rights currently outstanding or in effect to purchase any of the Capital Structure Date, no shares of authorized but unissued capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital treasury stock of the Company.

Capitalization. The authorized capital stock of the Company -------------- consists of (a) 180,000,000 25,000,000 Shares and (b) 20,000,000 and 2,500,000 shares of preferred stock, $.01 par value $0.01 per sharevalue. At As of the close of business on December 23, 2005 (the “Capital Structure Date”) date hereof (i) 17,725,181 12,552,951 Shares were are issued and outstanding, all of which are validly issued, fully paid and nonassessable, (ii) no shares Shares are held in the treasury of the preferred stock were issued and outstandingCompany, (iii) no Shares were are held by the Company in or any of its treasurySubsidiaries (as defined below), (iv) 1,345,594 1,232,939 Shares were are reserved for future issuance upon exercise of pursuant to outstanding Company Options granted under the Stock Plans and (v) 200,000 no shares of Series A participating preferred stock were reserved Preferred Stock are issued and outstanding. Except as provided in, or contemplated by, this Agreement and except for issuance Company Options granted pursuant to the Rights Agreement. Section 3.3 Company Stock Option Plans, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of or unissued capital stock of the Company and each or any of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates obligating the Company or any of its Subsidiaries to issueissue or sell any shares of capital stock of, grantor other equity or beneficial interests in, extend the Company or enter into any such optionof its Subsidiaries. No Company Options shall be accelerated or in any other way altered or changed, warrantwhether in connection with the acceleration of any vesting period or otherwise, callby the execution, rightdelivery or performance of this Agreement by the Company or the consummation of any of the Transactions except pursuant to and in accordance with Section 2.3 hereof. All Shares subject to issuance, securityupon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, commitmentwill be duly authorized, contractvalidly issued, arrangement fully paid and nonassessable. There are no outstanding contractual obligations of the Company or undertakingany Subsidiary to repurchase, (y) restricts redeem or otherwise acquire any Shares. Other than the transfer Stockholder Agreements, there are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party, or of which the Company is aware, relating to voting, registration or disposition of any shares of capital stock of the Company or (z) relates granting to any person or group of persons the right to elect, or to designate or nominate for election, a director to the voting board of any shares of capital stock directors of the Company.

Capitalization. The As of the date hereof, the authorized capital stock of the Company consists of (a) 180,000,000 Shares 50,000,000 shares of Common Stock and (b) 20,000,000 10,000,000 shares of preferred stock, par value $0.01 0.001 per share. At the close of business on December 23, 2005 share (the “Capital Structure DatePreferred Stock”) ), of the Company. As of the date hereof: (i) 17,725,181 Shares were 6,358,977 shares of Common Stock are issued and outstanding and, giving effect to Section 22 of this Agreement, no shares of Preferred Stock are issued and outstanding, ; (ii) no 268,748 shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were Common Stock are reserved for issuance and issuable upon exercise of outstanding Options granted under the Stock Plans options to purchase Common Stock; and (viii) 200,000 giving effect to Section 22 of this Agreement, 374,325 shares of Series A participating preferred stock were Common Stock are reserved for issuance and issuable upon exercise of outstanding warrants to purchase Common Stock, and there are no other rights to purchase from the Company any shares of its capital stock other than pursuant to this Agreement and other Agreements in effect on the date hereof. The certificates evidencing the Purchased Shares issued to the Purchaser pursuant to the Rights Agreementterms of this Agreement are in due and proper legal form and have been duly authorized for issuance by the Company. Section 3.3 All of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company Common Stock and each of its Subsidiaries Preferred Stock have been duly authorized and validly issued and are fully paid and nonassessable, and . There are not subject to any no statutory preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly similar rights to subscribe for or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock to purchase or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, acquire any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates Common Stock of the Company or any of its Subsidiaries subsidiaries or any such rights pursuant to its Articles of Incorporation or Certificate of Incorporation or by-laws or any agreement or instrument to or by which the Company or any of its subsidiaries is a party or bound. The Purchased Shares, when issued and delivered and paid for as provided herein, will be duly and validly issued and will be fully paid and nonassessable and will be issued free and clear of any security interests, liens, encumbrances, equities or claims. Except as disclosed in the Confidential Private Placement Memorandum, dated May 8, 2007 and attached hereto as Annex B, relating to the offering of the Shares, including all exhibits thereto, documents expressly incorporated by reference therein and annexes thereto, as the same was supplemented pursuant to the Supplement No. 1 to Confidential Private Placement Memorandum, dated May 24, 2007 and attached hereto as Annex C, and Supplement No. 2 to Confidential Private Placement Memorandum, dated June 8, 2007 and attached hereto as Annex D (the “Memorandum”), or this Agreement, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, grantany share of stock of the Company or any of its subsidiaries or any security convertible into, extend or enter into any exercisable or exchangeable for, such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any stock. All outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, and are fully paid and nonassessable and are owned directly by the Company or (z) relates to by another wholly-owned subsidiary of the voting Company free and clear of any shares of capital stock of the Companysecurity interests, liens, encumbrances, equities or claims.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 50,000,000 shares of preferred stockCompany Common Stock, par value $0.01 0.001 per share. At As of the close date of business on December 23this Agreement, 2005 (the “Capital Structure Date”a) (i) 17,725,181 Shares 10,776,548 shares of Company Common Stock were issued and outstanding, (iib) no 1,250,000 shares of the preferred stock Company Common Stock were issued authorized and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of Company Stock Option Plans, subject to adjustment on the terms set forth in the Company Disclosure Letter sets Stock Option Plans, (c) 916,689 Options were outstanding under the Company Stock Option Plans, (d) no Company Options were outstanding other than under the Company Stock Option Plans and 916,689 shares of Company Common Stock were authorized and reserved for issuance upon the exercise of such Company Options, subject to adjustment on the terms set forth a list in the relevant option agreements, and (e) no shares of Company Common Stock were held in the treasury of the Company’s . As of the date of this Agreement, the Company had no shares of Company Common Stock reserved for issuance or outstanding Options, including the exercise prices of all such Optionsother than as described above. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessableare, and are not subject all shares of capital stock of the Company which may be issued pursuant to the exercise of outstanding Company Options will be, duly authorized, validly issued, fully paid, nonassessable and free of any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company were, and all shares of capital stock of the Company which may be issued pursuant to the exercise of outstanding Company Options will be, issued in compliance with and in accordance with the applicable requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Securities Act of 1933, as amended, (the "Securities Act") and the rules and regulations promulgated thereunder (the "Securities Laws") and applicable state securities and "Blue Sky" laws. The Company has no outstanding bonds, debentures, notes or other obligations the holders of which have the right to vote (or which are owned directly convertible into or indirectly by exercisable for securities having the right to vote) with the stockholders of the Company on any matter. Section 5.3 of the Company Disclosure Schedule sets forth a complete and accurate list of the Company Options, including the name and address of the person to whom each Company Option has been granted, the date such Company Option was granted the number of shares subject to each Company Option, the per share exercise price for each Company Option, the vesting schedule for each Company Option, the date on which such Company Stock Option expires and the Company Stock Option Plan, if applicable, under which each Company Option has been issued. Except as set forth in Section 5.3 of the Company Disclosure Schedule, there are no options, warrants, calls, subscriptions, convertible securities, or other rights, agreements or commitments which obligate the Company to issue, transfer or sell any shares of capital stock or equity equivalents of the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities 5.3 of the Company were issuedDisclosure Schedule, reserved for issuance the vesting schedule of all Company Options shall not be changed or outstandingaffected by the execution of this Agreement or the consummation of the Transactions, including acceleration of such Company Options. Since The Company has previously made available to Parent true, complete and accurate copies of all option agreements with respect to the close Company Options (and has previously provided Parent with true, complete and accurate copies of business all option agreements set forth on the Capital Structure Date, no shares of capital stock or other equity securities Schedule 3.2 of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock PlansDisclosure Schedule). Except as described set forth in this Section, Section 5.3 of the Company is not party Disclosure Schedule, there are no agreements or understandings to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates Subsidiary is a party with respect to the voting of any shares of capital stock of the CompanyCompany or which restrict the transfer of any such shares, nor does the Company have knowledge of any third-party agreements or understandings with respect to the voting of any such shares or which restrict the transfer of any such shares. Except as set forth in Section 5.3 of the Company Disclosure Schedule, there are no outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of capital stock, partnership interests or any other securities of the Company or any Company Subsidiary. Except as set forth in Section 5.3 of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary is under any obligation, contingent or otherwise, by reason of any agreement to register the offer and sale or resale of any of their securities under the Securities Act. Except as set forth on Schedule 5.3 of the Company Disclosure Schedule, there are no registration rights and there is, except for the Voting Agreements, no voting trust, proxy, rights plan, anti-takeover plan or other agreement or understanding to which the Company or any Company Subsidiary is a party or by which they are bound with respect to any equity security of any class of the Company or with respect to any equity security, partnership interest or similar ownership interest of any class of any Company Subsidiaries. Stockholders of the Company will not be entitled to dissenters' rights under applicable state law in connection with the Merger.

Capitalization. (a) The authorized capital stock of the Company consists of (a) 180,000,000 30,000,000 Shares and (b) 20,000,000 1,000,000 shares of preferred stock, par value $0.01 .01 per share. At the close of business on December 23, 2005 share (the “Capital Structure Date”) "Preferred Stock"). As of the date hereof, (i) 17,725,181 12,217,936 Shares were are issued and outstanding, (ii) no shares Shares are issued and held in the treasury of the preferred stock were issued and outstandingCompany, (iii) no Shares were held by the Company in its treasuryshares of Preferred Stock are issued and outstanding, and (iv) 1,345,594 1,310,790 Shares were are reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance to employees pursuant to the Rights AgreementOption Plan, of which 517,117 Shares are subject to outstanding, unexercised options. Section 3.3 3.2(a) of the Company Disclosure Letter Schedule sets forth a true and complete list of the Company’s outstanding holders of Company Options, including such person's name, the number of options (vested, unvested and total) held by such person and the exercise prices of all price for each such Optionsoption. Since the date hereof, the Company has not issued or granted additional options under the Option Plan. All the outstanding shares of the Company's capital stock are, and all Shares which may be issued pursuant to the exercise of outstanding Company Options will be, when issued in accordance with the respective terms thereof, duly authorized, validly issued, fully paid and non-assessable. Except as disclosed in Section 3.2 of the Company Disclosure Schedule, there are no bonds, debentures, notes or other indebtedness having general voting rights (or convertible into securities having such rights) ("Voting Debt") of the Company or any of its Subsidiaries issued and outstanding outstanding. Except as set forth above, except as described in Section 3.2 of the Company Disclosure Schedule and except for the transactions contemplated by this Agreement, as of the date hereof, (i) there are no shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly authorized, issued and or outstanding, (ii) there are fully paid and nonassessableno outstanding options, and are not subject to any warrants, calls, preemptive rights. All , subscriptions or other rights, agreements, arrangements or commitments of any character, relating to the issued and outstanding shares of or unissued capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock ofof its Subsidiaries, or other equity interest in, the Company, (x) obligates obligating the Company or any of its Subsidiaries to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or equity interests, or obligating the Company or any of its Subsidiaries to grant, extend or enter into any such option, warrant, call, subscription or other right, security, commitment, contractagreement, arrangement or undertakingcommitment and (iii) except as set forth in Section 3.2(a) of the Company Disclosure Schedule, (y) restricts the transfer of any shares of capital stock there are no outstanding contractual obligations of the Company or (z) relates any of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares, or the voting of any shares of capital stock of the Company, or any Subsidiary or affiliate of the Company or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary or any other entity other than loans to Subsidiaries in the ordinary course of business.

Capitalization. (a) The authorized capital stock of the Company consists of 60,000,000 shares of the common stock of the Company, par value $.01 per share (athe “Company Common Stock”) 180,000,000 Shares and (b) 20,000,000 5,000,000 shares of preferred stock, par value $0.01 .01 per shareshare (the “Company Preferred Stock”). At As of the close of business on December 23March 31, 2005 (the “Capital Structure DateCut-off Time”) ), (i) 17,725,181 Shares 41,535,088 shares of Company Common Stock were issued and outstanding, and (ii) no 5,832,715 shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares Common Stock were reserved for issuance upon the exercise of outstanding Options granted under Company Options. From the Stock Plans and (v) 200,000 Cut-off Time to the date of this Agreement, no additional shares of Series A participating preferred stock were reserved for issuance Company Common Stock have been issued (other than pursuant to Company Options which were outstanding as of the Rights Agreement. Cut-off Time and are disclosed in Section 3.3 3.2(a) of the Company Disclosure Letter sets forth a list as contemplated below), no additional Company Options have been issued or granted, and there has been no increase in the number of shares of Company Common Stock issuable upon exercise of the Company Options from those issuable under such Company Options as of the Cut-off Time. As of the date of this Agreement, (i) 389,323 shares of Company Common Stock are held in the treasury of the Company’s , and (ii) there are no shares of Company Preferred Stock issued and outstanding Optionsor held in treasury. Except for the treasury shares described above in this Section 3.2, including neither the exercise prices Company nor any of all such Optionsits Subsidiaries directly or indirectly owns any shares of Company Common Stock. No bonds, debentures, notes or other indebtedness 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 may vote are issued or outstanding. All issued and outstanding shares of the Company’s capital stock are, and all shares that may be issued or granted pursuant to the exercise of Company Options will be, when issued or granted in accordance with the respective terms thereof, duly authorized, validly issued, fully paid and non-assessable and free of preemptive rights, with no personal liability attaching to the ownership thereof. Except for the Company Options and the Company Series A Preferred Stock purchase rights (the “Company Rights”) issued pursuant to the Rights Agreement, dated as of September 12, 1997, between the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessableAmerican Stock Transfer & Trust Company, and are not subject as amended to any preemptive rights. All of date (the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the “Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive rightRights Agreement”), agreement there are no outstanding or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, authorized (x) obligates options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, agreements, stock appreciation rights, phantom equity or other claims or commitments of any character (including “rights plans” or “poison pills”) obligating the Company or any of its Subsidiaries to issue, grant, extend transfer or enter sell any shares of capital stock or other equity interest in the Company or any of its Subsidiaries or securities convertible into any or exchangeable for such option, warrant, call, right, security, commitment, contract, arrangement shares or undertakingequity interests, (y) restricts contractual obligations of the transfer Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries or any such securities or agreements listed in clause (x) of this sentence, or (z) relates voting trusts or similar agreements to which the Company or any of its Subsidiaries is a party with respect to the voting of any shares of the capital stock of the CompanyCompany or any of its Subsidiaries. Section 3.2(a) of the Company Disclosure Letter sets forth the following information with respect to each Company Option outstanding as of the Cut-off Time: (i) name of the holder; (ii) number of shares of Company Common Stock issuable upon exercise thereof; (iii) exercise price; (iv) issue date; (v) termination date; and (vi) whether such option contains any put, redemption or similar feature. At the Effective Time, there will not be any outstanding subscriptions, options, warrants, calls, preemptive rights, subscriptions, or other rights, convertible or exchangeable securities, agreements, claims or commitments of any character by which the Company or any of its Subsidiaries will be bound calling for the purchase or issuance of any shares of the capital stock of the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or any other such securities or agreements. No additional shares shall be issued and all necessary action has been take to render the Company Rights inapplicable to the Merger.

Capitalization. (a) The authorized capital stock of the Company consists solely of (a) 180,000,000 Shares and (b) 20,000,000 10,000,000 shares of preferred stockthe Company Common Stock. As of the date hereof, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were 4,360,142 shares of Company Common Stock are issued and outstanding, outstand- ing; (ii) no 95,779 shares of the preferred stock were Company Common Stock are issued and outstanding, held in the treasury of the Company; (iii) no Shares were held by the 706,040 shares of Company in its treasury, (iv) 1,345,594 Shares were Common Stock are reserved for issuance upon exercise of the outstanding Options granted under the Option Plans; (iv) 31,894 shares of Company Common Stock Plans are reserved for issuance upon exercise of the outstanding Options under the Company's Employee Stock Purchase Plan (the "Stock Plan"); and (v) 200,000 26,000 shares of Series A participating preferred stock were Company Common Stock are reserved for issuance pursuant to under the Rights Savannah Agreement. Section 3.3 No agreement or other document grants or imposes on any shares of the Company Disclosure Letter sets forth a list Common Stock any right, preference, privilege or restriction with respect to the transaction contemplated hereby (including, without limitation, any rights of first refusal), other than the Company’s outstanding Options, including right to dissent from the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rightsMerger as provided in Section 2.1(d) above. All of the issued and outstanding shares of capital stock the Company Common Stock are, and all Shares which may be issued pursuant to the exercise of outstanding Options and the Savannah Agreement will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. There are no bonds, debentures, notes or other equity interests of each of the Subsidiaries indebtedness having general voting rights (or convertible into securities having such rights) ("Voting Debt") of the Company are owned directly or indirectly by the Companyany of its Subsidiaries issued and outstanding. Except as set forth in above and except for the transactions contemplated by this Section 3.3Agreement, at as of the close of business on the Capital Structure Datedate hereof, (i) there are no shares of capital stock or other equity securities of the Company were issuedauthorized, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved outstanding and (ii) except for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party POL Agreement with respect to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock ofof POL, and except as otherwise set forth on Schedule 3.2(a) hereto, there are no existing options, warrants, calls, preemptive rights, subscriptions or other equity interests inrights, agreements, arrangements or commitments of any character (including without limitation "earn-out" arrangements) relating to the issued or unissued capital stock of the Company or any security convertible or exercisable for or exchangeable into any capital stock ofof its Subsidiaries, or other equity interest in, the Company, (x) obligates obligating the Company or any of its Subsidiaries to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or equity interests or obligations of the Company or any of its Subsidiaries to grant, extend or enter into any such option, warrant, call, subscription or other right, security, commitment, contractagreement, arrangement or undertakingcommitment. There are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, (y) restricts redeem or otherwise acquire any Shares or the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock Subsidiary or affiliate of the CompanyCompany or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary or any other entity.

Capitalization. The As of the date hereof, the authorized capital stock of the Company consists of (ai) 180,000,000 Shares and (b) 20,000,000 50,000,000 shares of preferred stockCommon Stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were which 6,616,565 shares are issued and outstanding6,612,196 shares are outstanding as of the date hereof, and (ii) no 1,000,000 shares of Preferred Stock, of which 48,260 are issued and outstanding as of the preferred stock date hereof. Such shares of Preferred Stock have been designated as Senior Noncumulative Perpetual Preferred Stock, Series C, and were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of Treasury on July 6, 2011 in connection with the Company’s outstanding Optionsparticipation in the Treasury’s Small Business Lending Fund Program. Immediately following consummation of the Private Placement and the issuance of additional shares of Common Stock and shares of Nonvoting Preferred Stock pursuant thereto, including the exercise prices Common Stock acquired by the Purchaser pursuant to this Agreement will represent not more than 9.99% of all such Options. All the issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rightsCommon Stock. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company have been, and upon consummation of the Private Placement will be, duly authorized and validly issued and are, and upon consummation of the Private Placement will be, fully paid, non-assessable and free of Liens, with no personal liability attaching to the ownership thereof, have been, and upon consummation of the Private Placement will be, issued in compliance in all material respects with all applicable federal and state securities Laws, and none of such shares of capital stock has been, or upon consummation of the Private Placement will be, issued in violation of any preemptive rights or similar rights to subscribe for or purchase any capital stock of the Company. As of the date hereof, there are owned directly (i) 232,642 outstanding stock options (the “Company Stock Options”) issued as nonqualified stock options pursuant to individual employment or indirectly by other agreements with a weighted average exercise price equal to $24.19 per share and (ii) 700,000 shares of Common Stock remaining available for issuance under the Company’s 2012 Stock Incentive Plan (the “Company Plan”). Each Company Stock Option (i) was granted in compliance with all applicable Laws and all of the terms and conditions of the individual employment or other agreements, and, to the extent issued under the Company Plan, in compliance with the Company Plan, (ii) has an exercise price per share of Common Stock equal to or greater than the fair market value of a share of Common Stock on the date of such grant and (iii) has a grant date identical to or following the date on which the Board of Directors or compensation committee of the Board of Directors actually awarded such Company Stock Option. As of the date hereof, other than the shares of Common Stock reserved under the Company Plan, no shares of Common Stock or Preferred Stock are reserved for issuance. Neither the Company nor any of its officers, directors or employees is a party to any right of first refusal, tight of first offer, proxy, voting agreement, voting trust, registration rights agreement or shareholders agreement with respect to the sale or voting of any securities of the Company. Except as set forth in this Section 3.3, at the close of business disclosed on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive rightSchedule 3.l(g), agreement or commitment which (wi) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares none of the capital stock ofof the Company is subject to preemptive rights or any other similar rights; (ii) there are no outstanding options or other equity-based awards, warrants, scrip, rights to subscribe to, calls, agreements, arrangements or commitments of any character whatsoever relating to, or other equity interests insecurities or rights convertible into, the Company or any security convertible or exercisable for or exchangeable into any capital stock offor, or other equity interest inevidencing the right to subscribe for, the Company, (x) obligates the Company purchase or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of receive any shares of capital stock of the Company or any Subsidiary, (ziii) relates there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of capital stock of the voting Company or any Subsidiary or options or other equity-based awards, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, or evidencing the right to subscribe for, purchase or receive any shares of capital stock of the Company or any Subsidiary; (iv) there are no material outstanding debt securities, notes, credit agreements, credit facilities or other agreements, arrangements, commitments, documents or instruments evidencing indebtedness of the Company or any Subsidiary or by which the Company or any Subsidiary is bound, other than credit agreements or facilities entered into by the Bank in the ordinary course of its business; (v) there are no agreements, commitments, understandings or arrangements under which the Company or any Subsidiary is obligated to register the sale of any of the securities of the Company or any Subsidiary under the Securities Act (except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments, agreements, commitments, understandings or arrangements of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to sell, transfer, dispose, repurchase or redeem a security of the Company or any Subsidiary; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Shares; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any Subsidiary has any liabilities or obligations not disclosed on the Company’s Financial Statements or disclosed in the notes thereto, which, individually or in the aggregate, will have or would reasonably be expected to have a Material Adverse Effect.

Capitalization. The authorized capital stock of the -------------- Company consists of (a) 180,000,000 200,000,000 Shares and (b) 20,000,000 10,000 000 shares of preferred stock, par value $0.01 0.001 per shareshare ("Company Preferred Stock"). At the close As of business on December 23February 21, 2005 2001, ----------------------- (the “Capital Structure Date”a) (i) 17,725,181 59,332,385 Shares were issued and outstanding, (ii) no shares all of the preferred stock were issued and outstandingwhich are validly issued, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and (b) no Shares are not subject to any preemptive rights. All held in the treasury of the Company, (c) no Shares are held by the Subsidiaries and (d) 14,284,879 Shares are reserved for future issuance pursuant to outstanding employee stock options or stock incentive rights granted pursuant to the Company Stock Option Plans. As of the date hereof, no shares of Company Preferred Stock are issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Companyoutstanding. Except as set forth in this Section 3.34.03 or in Section 4.03 of the Disclosure Schedule, at there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the close of business on the Capital Structure Date, no shares of issued or unissued capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock any Subsidiary or other equity securities of obligating the Company have been issued or reserved for issuance any Subsidiary to issue or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into Subsidiary. Section 4.03 of the Disclosure Schedule sets forth the following information with respect to each Company Stock Option outstanding on the date of this Agreement: (i) the name of the option holder; (ii) the particular plan pursuant to which such Company Stock Option was granted; (iii) the number of Shares subject to such Company Stock Option; (iv) the exercise price of such Company Stock Option; (v) the date on which such Company Stock Option was granted; (vi) the applicable vesting schedule; (vii) the date on which such Company Stock Option expires; and (viii) whether the exercisability of such option will be accelerated in any capital stock ofway by the transactions contemplated by this Agreement. All Shares subject to issuance as aforesaid, or other equity interest inupon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, the Companywill be duly authorized, (x) obligates validly issued, fully paid and nonassessable. There are no outstanding contractual obligations of the Company or any of its Subsidiaries Subsidiary to issuerepurchase, grant, extend redeem or enter into otherwise acquire any such option, warrant, call, right, security, commitment, contract, arrangement Shares or undertaking, (y) restricts the transfer any capital stock of any shares Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Each outstanding share of capital stock of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or (z) relates to another Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company's or any Subsidiary's voting rights, charges and other encumbrances of any shares of capital stock of the Companynature whatsoever.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 20,000,000 Common Shares and (b) 20,000,000 2,000,000 shares of preferred stock, no par value $0.01 per share(the "Preferred Stock"). At As of the close of business on December 2310, 2005 (the “Capital Structure Date”) (i) 17,725,181 1997, there were 10,511,576 Common Shares were issued and outstanding, (ii) no shares of the preferred Preferred Stock issued. The Company has no shares of capital stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise issuance, except that, as of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock December 10, 1997, there were 1,201,102 Common Shares reserved for issuance pursuant to Options granted pursuant to the Rights AgreementOption Plans. Section 3.3 of Since March 31, 1997, the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All has not issued and outstanding any shares of capital stock except pursuant to the exercise of Options outstanding as of such date and in accordance with their terms. All the Company outstanding Common Shares are, and each all Common Shares which may be issued pursuant to the exercise of its Subsidiaries have been outstanding Options and pursuant to the Stock Option Agreement will be, when issued in accordance with the respective terms thereof, duly authorized and authorized, validly issued and are issued, fully paid and nonassessable. There are no bonds, and are not subject to any preemptive debentures, notes or other indebtedness having general voting rights (or convertible into Shares having such rights. All ) ("Voting Debt") of the issued and outstanding shares of capital stock Company or other equity interests of each any of the Subsidiaries of the Company are owned directly or indirectly by the Companyissued and outstanding. Except as set forth in this Section 3.34.03 and except for the Merger and the Stock Option Agreement, at there are no existing options, warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of any character, relating to the close issued or unissued capital stock of business on the Capital Structure DateCompany or any of the Subsidiaries, no obligating the Company or any of the Subsidiaries to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock Voting Debt of, or other equity interest in, the Company, (x) obligates Company or any of the Subsidiaries or securities convertible into or exchangeable for such shares or equity interests or obligations of the Company or any of its the Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, subscription or other right, security, commitment, contractagreement, arrangement or undertakingcommitment. Except (i) as contemplated by the Merger contemplated by this Agreement, (yii) restricts for the transfer Company's obligations under the Option Plans and (iii) for the Company's obligations under the Stock Option Agreement, there are no outstanding contractual obligations of the Company or any shares of the Subsidiaries to repurchase, redeem or otherwise acquire any Common Shares or the capital stock of the Company or (z) relates to any of the voting Subsidiaries. Each of any the outstanding shares of capital stock of each of the Company.Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and such shares of the Subsidiaries as are - 8 - 9 owned by the Company or by another Subsidiary are owned in each case free and clear of any lien, claim, option, charge, security interest, limitation, encumbrance and restriction of any kind (any of the foregoing being a "Lien"). Section 4.03 of the Company Disclosure Statement contains a complete list as of the date hereof of each Subsidiary and sets forth with respect to each of the Subsidiaries its name and jurisdiction of organization and, with respect to each Subsidiary that is not wholly-owned by the Company or another Subsidiary, the percentage of shares of capital stock or share capital owned by the Company or a Subsidiary. Except for the capital stock of the Subsidiaries or as set forth in Section 4.03 of the Company Disclosure Statement, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any corporation, partnership, limited liability company, joint venture or other entity. SECTION 4.04

Capitalization. The authorized capital stock of the Company consists of (ai) 180,000,000 Shares and (b) 20,000,000 70,000 shares of preferred stock, par value $0.01 per share. At Common Stock of which as of the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were date hereof 33,737 shares are validly issued and outstanding, fully paid and non-assessable, 5,123 shares of which have been duly and validly reserved for issuance upon conversion of the Senior Preferred Stock, and 2,979 shares of which have been duly and validly reserved for issuance upon conversion of the Series B Preferred Stock, (ii) no 5,123 shares of Senior Preferred Stock of which as of the preferred stock were date hereof 5,123 shares are validly issued and outstanding, fully paid and non-assessable, and (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 2,979 shares of Series A participating preferred B Preferred Stock, none of which are outstanding as of the date hereof. Except as set forth on SCHEDULE 6.3 or as contemplated by this Agreement, the Senior Preferred Stock Purchase Agreement, the Amended Articles, the Amended and Restated Registration Rights Agreement and Ancillary Agreements, there are outstanding no subscriptions, options, warrants, calls, commitments or rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder agreements or agreements of any character relating to shares of the Company's capital stock were reserved for issuance pursuant to or any instruments that can be converted into shares of the Rights AgreementCompany's capital stock. Section 3.3 None of the shares of the Company's capital stock have been issued in violation of any preemptive right. All issuances, transfers or purchases of the capital stock of the Company Disclosure Letter sets have been in compliance with all applicable agreements and all applicable laws, including federal and state securities laws, and all taxes thereon, if any, have been paid. Except as set forth a list on SCHEDULE 6.3, no former or present holder of any of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to has any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of legally cognizable claim against the Company are owned directly based on any issuance, sale, purchase, redemption or indirectly by the Company. Except as set forth involvement in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock by the Company. Except as contemplated by this Agreement, the Senior Preferred Stock Purchase Agreement or as set forth on SCHEDULE 6.3, there are no contractual obligations of the Company to repurchase, redeem or (z) relates to the voting of otherwise acquire any shares of capital stock of the Company. No bonds, debentures, notes or other indebtedness having the right to vote (or convertible into or exercisable for securities having the right to vote) on any matters on which shareholders of the Company may vote are issued or outstanding. Except for this Agreement, the Senior Preferred Stock Purchase Agreement and the Shareholders Agreement, the Company is not a party or subject to any agreement or understanding, and, to the Company's best knowledge, there is no agreement or understanding between any persons that affects or relates to the voting or giving of written consents with respect to any security or the voting by any director of the Company.

Capitalization. The entire authorized capital stock of the Company Mediconsult consists of (a) 180,000,000 Shares 100,000,000 shares of Mediconsult Common Stock, of which 54,190,636 shares are issued and (b) 20,000,000 outstanding, and 5,000,000 shares of preferred stock, each with a par value of $0.01 .001 per share. At the close , none of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were which are issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock Mediconsult Common Stock have been duly authorized and are validly issued, fully paid, and nonassessable and are free and clear of any liens or encumbrances other equity interests than any liens or encumbrances created by or imposed upon the holders thereof, and are not subject to preemptive rights or rights of first refusal created by statute, the Mediconsult Certificate of Incorporation or bylaws, each as amended, or any agreement to which Mediconsult is a party or by which it is bound. As of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure DateDecember 31, no 2000, Mediconsult has reserved an aggregate of 7,345,270 shares of capital stock or other equity securities Mediconsult Common Stock, net of the Company were issuedexercises, reserved for issuance to employees, consultants and directors pursuant to the Mediconsult Option Plans, of which 3,358,375 shares have been issued pursuant to option exercises or direct stock purchases, and 3,986,895 shares are subject to outstanding, unexercised options. Since As of the close of business on the Capital Structure DateDecember 31, no 2000, there were 1,703,425 shares of capital stock or other equity securities of Mediconsult Common Stock issuable pursuant to the Company have been Mediconsult Warrants. Since September 30, 2000, Mediconsult has not issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted additional options under the Stock PlansMediconsult Option Plans or otherwise. Mediconsult has not issued or granted any stock appreciation rights or performance units under the Mediconsult Option Plans or otherwise. Except as described in for the rights created pursuant to this SectionAgreement, the Company Mediconsult Option Plans or the Mediconsult Warrants, there are no other options, warrants, calls, rights, commitments or agreements of any character to which Mediconsult is not a party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment by which (w) obligates the Company it is bound obligating Mediconsult to issue, deliver, sell sell, repurchase or transfer, or repurchase, redeem or otherwise acquireredeem, or cause to be issued issued, delivered, sold sold, repurchased or transferred, or repurchased, redeemed or otherwise acquiredredeemed, any shares of Mediconsult Capital Stock or obligating Mediconsult to grant, extend, accelerate the capital stock vesting of, change the price of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend otherwise amend or enter into any such option, warrant, call, right, securitycommitment or agreement. Except for this Agreement or contemplated hereunder, commitmentthere are no contracts, contractcommitments or agreements relating to voting, arrangement purchase or undertakingsale of Mediconsult Capital Stock (i) between or among Mediconsult and any of the Mediconsult Stockholders or (ii) to Mediconsult's Knowledge, (y) restricts between or among any of the transfer Mediconsult Stockholders. To the extent not terminated prior to Closing, the terms of the Mediconsult Option Plans and the Mediconsult Warrants permit the assumption of options or warrants, respectively, to purchase Mediconsult Common Stock as provided in this Agreement, without the consent or approval of the holders of such securities, the Mediconsult Stockholders, or otherwise. Since May 1, 1999, none of the forms of agreements and instruments relating to or issued under the Mediconsult Option Plans have been amended, modified or supplemented, and there are no agreements to amend, modify or supplement such agreements or instruments in any case from the existing forms. All outstanding shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the CompanyMediconsult Common Stock and all Mediconsult Options and Mediconsult Warrants were issued in compliance with all applicable federal and state securities laws.

Capitalization. The authorized capital stock of the Company -------------- consists of: (i) 60,000,000 Shares, of (a) 180,000,000 which, as of the date hereof, 30,274,000 Shares were issued and outstanding and (bii) 20,000,000 1,000,000 shares of preferred stock, $0.01 par value $0.01 per share. At , none of which, as of the close of business on December 23date hereof, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) no shares . As of the preferred stock were issued and outstandingdate hereof, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 2,271,250 Shares were reserved for issuance upon exercise of outstanding Options granted under the 1997 Stock Plans Option Plan, as amended, with an exercise price range of a minimum exercise price of $2.80 and (v) 200,000 a maximum exercise price of $9.13. All outstanding shares of Series A participating preferred capital stock were and other equity securities of the Company and each Company Subsidiary are, and all Shares which may be issued pursuant to the exercise of outstanding Options and as earn-out payments pursuant to the Acquisition Agreements, will be, when so issued, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. There are no bonds, debentures, notes or other indebtedness or securities of the Company or of any Company Subsidiary issued and outstanding which have the right to vote (or are convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company or any Company Subsidiary may vote. Except as set forth above or in Section 2.1(d) of the Company Disclosure Schedule and except for a maximum of 6,124,000 Shares which may be issued pursuant to earn-out arrangements contained in the Acquisition Agreements (as defined in Section 3.10 hereof) assuming that the targets set forth in the projections delivered to Parent by the Company with respect to earn-out obligations to which the Company or any Company Subsidiary is subject pursuant to the Acquisition Agreements and assuming that the applicable market price of the Shares is equal to the Offer Price (it being understood that all earn-out obligations can be satisfied in cash), as of the date of this Agreement: (i) no shares of capital stock or other securities of the Company are issued, reserved for issuance pursuant or outstanding, (ii) there are no stock appreciation rights, phantom stock units, restricted stock grants, contingent stock grants or Benefit Plans (as defined in Section 3.11 hereof) which grant awards of any of the foregoing, and there are no other outstanding contractual rights to which the Rights AgreementCompany is a party the value of which is based on the value of Shares; and (iii) except as set forth above, there are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary is a party or by which any of them is bound obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, shares of capital stock or other securities of the Company or of any Company Subsidiary or obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. Except as set forth in Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s Schedule, there are no programs in place, nor any outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock contractual obligations of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessableor any Company Subsidiary, and are not subject to repurchase, redeem or otherwise acquire any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issuedor any Company Subsidiary or to provide funds to make any investment (in the form of a loan, reserved for issuance capital contribution or outstandingotherwise) in any Company Subsidiary or any other entity. Since There are no voting trusts or other agreements or understandings to which the close Company or any Company Subsidiary is a party with respect to the voting of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plansany Company Subsidiary. Except as described set forth in this Section, Section 3.3 of the Company is not party to any outstanding optionDisclosure Schedule, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares no indebtedness of the capital stock of, or other equity interests in, the Company or any security convertible Company Subsidiary or exercisable for as to which the Company or exchangeable into any Company Subsidiary has given a guarantee or by which any of their respective assets or properties are bound contains any restriction upon (i) the prepayment of any indebtedness of the Company or any Company Subsidiary, (ii) the incurrence of indebtedness by the Company or any Company Subsidiary or (iii) the ability of the Company or any Company Subsidiary to grant any Lien on the properties or assets of the Company or any Company Subsidiary. Except as set forth in Section 3.3 of the Company Disclosure Schedule, each outstanding share of capital stock of, or other equity interest in, of each Company Subsidiary is owned by the Company or a Company Subsidiary that is wholly owned by the Company, (x) obligates the Company or any free and clear of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Companyall Liens.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 10,000,000 shares of preferred stock, par value $0.01 per shareCommon Stock. At As of the close of business on December 23January 31, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares 1996, 4,628,054 shares of Common Stock were issued and outstanding, 671,021 shares of Common Stock were reserved for issuance upon the exercise of outstanding options to acquire shares of Common Stock (ii) "Stock Options"), no shares of the preferred stock were issued and outstanding, (iii) no Shares Common Stock were held by the Company in its treasury, (iv) 1,345,594 Shares treasury and 16,430 shares of Common Stock were reserved for issuance upon exercise of outstanding Options granted under the Company's employee stock purchase plan (the "Stock Plans Purchase Plan") and (v) 200,000 no shares of Series A participating preferred stock Preferred Stock were reserved for issuance pursuant to the Rights Agreementissued and outstanding. Section 3.3 The number of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock Common Stock at any time taken together with the number of shares of Common Stock reserved for issuance upon the Company and each exercise of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject outstanding Stock Options at such time is referred to any preemptive rights. herein as the "Fully Diluted Shares." All of the issued and outstanding shares of capital stock Common Stock are validly issued, fully paid and nonassessable and are not subject to preemptive rights created by statute, the Certificates of Incorporation or other equity interests of each of the Subsidiaries Bylaws of the Company are owned directly or indirectly any agreement to which the Company is a party or by which the CompanyCompany or its assets is bound. Except as set forth disclosed in this Section 3.34.2, at the close of business on the Capital Structure Date, there are no shares of capital stock of the Company issued or outstanding, and except for the Stock Options and rights to purchase shares of Common Stock under the Stock Purchase Plan, there are no outstanding subscriptions, options, warrants, rights, convertible securities or other equity agreements or commitments of any character (including, without limitation, rights which will or could become exercisable as a result of this Agreement or any transaction contemplated hereby) relating to the issued or unissued capital stock or other securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates obligating the Company to issue, deliver, sell deliver or transfer, or repurchase, redeem or otherwise acquiresell, or cause to be issued deliveredissued, sold delivered or transferredsold, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any additional shares of capital stock of the Company or (z) relates obligating the Company to grant, extend or enter into any subscription, option, warrant, right, convertible security or other similar agreement or commitment. There are no voting trusts or other agreements or understandings to which the Company or any Subsidiary of the Company is a party with respect to the voting of any shares of the capital stock of the CompanyCompany or such Subsidiary.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 shares 100,000,000 Shares. As of preferred stockthe date hereof, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 16,513,800 Shares were are issued and outstanding, all of which are validly issued, fully paid and nonassessable and free of preemptive rights, (ii) no shares 111,200 Shares are held in the treasury of the preferred stock were issued and outstandingCompany, (iii) no Shares were are held by the Company in its treasury, Subsidiaries and (iv) 1,345,594 1,200,000 Shares were are reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for future issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of employee stock options granted pursuant to the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company's Stock Option Plans. Except as set forth in this Section 3.33.03, at there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the close of business on the Capital Structure Date, no shares of issued or unissued capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock any Subsidiary or other equity securities of obligating the Company have been issued or reserved for issuance any Subsidiary to issue or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into Subsidiary. All Shares subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. Schedule 3.03 contains a list of all options to purchase any capital stock of, or other equity interest in, of the Company, (x) obligates . There are no outstanding contractual obligations of the Company or any Subsidiary to provide funds to, or make any investment (in the form of its a loan, capital contribution or otherwise) in, any Subsidiary or any other person other than to agents and wholly owned Subsidiaries of the Company, in the ordinary course of business consistent with past practice. There are no commitments, understandings, restrictions or arrangements obligating the Company to issuepurchase, grantredeem or acquire, extend or enter into register under any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of securities law any shares of capital stock of or any securities or rights convertible into, exchangeable for, or evidencing the Company or (z) relates right to the voting of subscribe to any shares of capital stock of the Company. Except for any obligations in connection with this Agreement, there are not as of the date hereof, and there will not be at the Closing Date, any stockholder agreement, voting trust or other agreements or understandings to which the Company is a party or to which it is bound, relating directly or indirectly to any Company Common Stock. Section 3.04.

Capitalization. The authorized capital stock of the Company consists of of: (a) 180,000,000 Shares Eleven Million, Nine Hundred Thousand (11,900,000) shares of Company Common Stock, of which 44,002 shares are issued and outstanding and no shares are held in the treasury of the Company; and (b) 20,000,000 Eight Million, One Hundred Thousand (8,100,000) shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) which (i) 17,725,181 Shares were Six Million, Two Hundred Thousand (6,200,000) shares have been designated as Series A Convertible Preferred Stock, of which 5,814,825 shares are issued and outstanding, and (ii) no One Million, Nine Hundred Thousand (1,900,000) have been designated as Series B Convertible Preferred Stock, of which 1,551,111 shares of the preferred stock were are issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 2.2 of the Company Disclosure Letter Schedule sets forth a complete and accurate list of: (a) all stockholders of the Company’s outstanding Options, including indicating the type and number of Company Shares held by each stockholder; and (b) all holders of Options and Warrants, indicating the type and number of Company Shares subject to each Option and Warrant and the exercise prices of all such Optionsprice thereof. All issued and outstanding shares of capital stock of the Company Options and each of its Subsidiaries Warrants have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject granted pursuant to any preemptive rightsa form of agreement or other instrument previously provided to the Buyer. All of the issued and outstanding shares Company Shares are, and all Company Shares that may be issued upon exercise of Options and Warrants will be, duly authorized, validly issued, fully paid, nonassessable and free of all preemptive rights. There are no declared or accrued but unpaid dividends with regard to any issued and outstanding Company Shares. Holders of issued and outstanding Company Shares have no basis for asserting rights to rescind the purchase of any such Company Shares. Other than the Options and Warrants, there are no outstanding or authorized options, warrants, rights, calls, agreements or commitments to which the Company is a party or which are binding upon the Company providing for the issuance, disposition or acquisition of any of its capital stock. There are no outstanding or authorized stock appreciation, phantom stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by similar rights with respect to the Company. Except as set forth in this Section 3.3There are no agreements, at voting trusts, proxies, or understandings with respect to the close voting, or registration under the Securities Act, of business on the Capital Structure Date, no shares of capital stock any Company Shares: (a) between or other equity securities of among the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or and any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, stockholders; and (yb) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of Company's knowledge, between or among any shares of capital stock of the Company's stockholders. All of the issued and outstanding Company Shares were issued in compliance with applicable federal and state securities laws.

Capitalization. The As of the date hereof, the authorized capital stock of the Company consists of (a) 180,000,000 15,000,000 Ordinary Shares and (b) 20,000,000 shares 7,125 A Ordinary Shares. As of preferred stockNovember 30, par value $0.01 per share. At the close of business on December 232003, 2005 (the “Capital Structure Date”) (i) 17,725,181 9,945,366 Ordinary Shares were issued and outstanding, (ii) no shares of the preferred stock 7,015 A Ordinary Shares were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 outstanding and 599,234 Ordinary Shares were reserved for issuance upon exercise of outstanding Company Options granted under prior to the Stock Plans date hereof. No other capital stock of the Company is authorized or issued. All issued and outstanding Shares are duly authorized, validly issued, fully paid and non-assessable and were issued free of preemptive rights and in compliance with applicable Laws. Except as set forth in Section 2.2 of the Company Disclosure Letter or as otherwise contemplated by this Agreement, as of the date hereof, (i) there are no Company Options outstanding, and (vii) 200,000 other than Company Options, there are no outstanding rights, subscriptions, warrants, puts, calls, unsatisfied preemptive rights, options, voting, redemption, repurchase or other agreements of any kind, to which the Company or any of its subsidiaries is a party, relating to any of the outstanding, authorized but unissued or unauthorized shares of Series A participating preferred the capital stock were reserved or any other equity security of the Company, and there is no authorized or outstanding security of any kind convertible into or exchangeable for issuance pursuant any such capital stock or other equity security. No bonds, debentures, notes or other indebtedness of the Company or any of its subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the Rights Agreementright to vote) on any matters on which the stockholders of the Company or any of its subsidiaries may vote are issued or outstanding. Section 3.3 2.2 of the Company Disclosure Letter sets forth a complete and accurate list as of the Company’s date hereof of the holders of all outstanding Company Options, including restricted stock, performance shares or units, deferred shares, stock units and other stock awards and the exercise prices price, date of all such Options. All issued grant and outstanding shares number of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not Ordinary Shares subject to any preemptive rights. All of the issued and each such outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the CompanyOption. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities 2.14 of the Company were issuedDisclosure Letter, reserved for issuance there are no agreements, arrangements or outstanding. Since the close commitments of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party any character to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries subsidiaries is a party (contingent or otherwise) pursuant to issuewhich any person is, grantor may be, extend entitled to receive any payment based on the revenues, assets, earnings or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock financial performance of the Company or (z) relates to the voting any of any shares of capital stock of the Companyits subsidiaries.

Capitalization. The As of the date hereof, the authorized capital stock of the Company consists of (ai) 180,000,000 Shares 50,000,000 shares of Company Common Stock of which, as of March 21, 1997, 26,205,569 shares were issued and outstanding and no shares were held in treasury and (bii) 20,000,000 shares of preferred stockPreferred Stock, par value $0.01 0.10 per share. At the close , no shares of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were which are issued and outstanding. As of the date hereof, (ii) no 503,575 shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were Common Stock are reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance options pursuant to the Rights AgreementCompany's 1995 Stock Option Plan (the "Company Stock Plan"). Section 3.3 All the outstanding shares of Company Common Stock are, and all shares which may be issued pursuant to the Company Stock Plan will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessable and free of any preemptive rights in respect thereto. As of the date hereof, no bonds, debentures, notes or other indebtedness convertible into securities having the right to vote ("Convertible Debt") of the Company Disclosure Letter sets are issued or outstanding. Except as set forth a list above or in respect of the Company’s outstanding Optionsemployee benefit plans in effect as of the date hereof, including as of the exercise prices date hereof, there are no existing options, warrants, calls, subscriptions or other rights or other agreements or commitments of all such Options. All any character relating to the issued and outstanding shares of or unissued capital stock or Convertible Debt of the Company and each or any of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessableor obligating the Company or any of its Subsidiaries to issue, and are not subject transfer or sell or cause to be issued, transferred or sold any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock Convertible Debt of, or other equity interests in, the Company or of any security of its Subsidiaries or securities convertible or exercisable for into or exchangeable into any capital stock of, for such shares or other equity interest in, the Company, (x) obligates interests or obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, subscription or other right, securityagreement or commitment. As of the date hereof, commitmentthere are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, contract, arrangement redeem or undertaking, (y) restricts the transfer of otherwise acquire any shares of capital stock of the Company or (z) relates to the voting any of any shares of capital stock of the Companyits Subsidiaries.

Capitalization. (a) The authorized capital stock of the Company consists of 80,000,000 shares of Preferred Stock, $0.01 per share (a) 180,000,000 Shares the "Preferred Stock"), 100,000,000 shares of Class B Common Stock and (b) 20,000,000 shares of preferred stock, par value $0.01 per shareClass A Common Stock. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All The issued and outstanding shares of capital stock Preferred Stock, Class A Common Stock and Class B Common Stock (such issued shares are collectively referred to herein as the "Capital Stock"), as of the Company date hereof and each as adjusted to give effect to the Reorganization (as hereinafter defined), are as set forth on Schedule 2.05(a). All of its Subsidiaries the shares of Capital Stock have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3Schedule 2.05(b) hereto or as contemplated herein, at there are no subscriptions, options, warrants, conversion rights, rights of exchange, or other rights, plans, agreements or commitments of any nature whatsoever (including, without limitation, conversion or preemptive rights) providing for the close purchase, issuance, transaction, registration or sale of business on the Capital Structure Date, no any shares of capital stock the Company's Capital Stock or other equity any securities convertible into or exchangeable for any shares of the Company's Capital Stock (collectively, the "Company Derivative Securities"). Without taking into account any effect of the exchange of options pursuant to Section 5.09(a), none of the Company were issued, reserved for issuance or outstandingDerivative Securities are entitled to be accelerated as a result of the Merger. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities All of the Company Derivative Securities have been issued or reserved for issuance or become outstandingissued, other than Shares described in clause (iv) and all of the second sentence Company Derivative Securities to be issued in the Reorganization will be issued, pursuant to valid exemptions from registration under all Federal and state securities laws, except where the failure to have such exemptions would not have a Company Material Adverse Affect, and there are no outstanding obligations of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, acquire any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the CompanyDerivative Securities.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 51,000,000 shares of preferred stockCompany Common Stock, par value $0.01 per share. At of which 725,729 shares have been issued and are outstanding as of the close date of business on December 23this Agreement, 2005 (the “Capital Structure Date”) and 36,505,724 shares of Company Preferred Stock, of which: (i) 17,725,181 Shares were 752 shares are designated as Series B Preferred Stock, of which 751 shares have been issued and outstanding, are outstanding as of the date of this Agreement; (ii) 4,972 shares are designated as Series D Preferred Stock, of which 4,970 shares have been issued and are outstanding as of the date of this Agreement; and (iii) 36,500,000 shares are designated as Series E Preferred Stock, of which 23,141,927 shares have been issued and are outstanding as of the date of this Agreement. The outstanding shares of Company Capital Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, all of the outstanding shares of Company Capital Stock are held by the Persons, with the addresses of record and in the amounts set forth in Part 2.3(a) of the Disclosure Schedule. The Company holds no repurchase options except pursuant to the terms of the Company 2000 Stock Option Plan. All of the stock of the Subsidiaries owned by the Company is owned by the Company free and clear of any Encumbrance. The outstanding shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, have been issued in compliance with all applicable Legal Requirements, including securities laws, and are were not issued in violation of or subject to any preemptive rights. All of the issued and outstanding shares of capital stock rights or other equity interests rights to subscribe for or purchase securities of each of the Subsidiaries of the Company such Subsidiaries. There are owned directly or indirectly by the Company. Except as set forth in this Section 3.3no options, at the close of business on the Capital Structure Date, no shares of capital stock warrants or other equity securities of the Company were issued, reserved rights outstanding to subscribe for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, purchase any shares of the capital stock of, of the Subsidiaries and the Subsidiaries are not subject to any Contract or other equity interests in, court or administrative order under which either of the Company Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any security convertible other securities. There are no preemptive rights applicable to any shares of capital of any of the Subsidiaries. The Subsidiaries do not have the right to vote on or exercisable for or exchangeable into any capital stock of, or other equity interest in, approve the Company, (x) obligates the Company Merger or any of the other transactions contemplated by this Agreement. The Company has reserved 8,088,985 shares of Company Common Stock for issuance under its Subsidiaries 1996 Stock Option Plan, of which options to issuepurchase 7,063,956 shares are outstanding as of the date of this Agreement, grantand 67,266 shares of Company Common Stock for issuance under its 2000 Stock Option Plan, extend or enter into any of which options to purchase 63,726 shares are outstanding as of the date of this Agreement. Part 2.3(c) of the Disclosure Schedule accurately sets forth, with respect to each Company Option that is outstanding as of the date of this Agreement: (i) the name of the holder of such optionCompany Option; (ii) the total number of shares of Company Common Stock that are subject to such Company Option and the number of shares of Company Common Stock with respect to which such Company Option is immediately exercisable; (iii) the date on which such Company Option was granted and the Company Option Plan under which it was granted; and (iv) the exercise price per share of Company Common Stock purchasable under such Company Option. Part 2.3(d) of the Disclosure Schedule accurately sets forth, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any with respect to each warrant to purchase shares of capital stock of the Company or that is outstanding as of the date of this Agreement: (zi) relates the name of the holder of such warrant; (ii) the total number of shares of Company Capital Stock that are subject to such warrant and the voting number of shares of Company Capital Stock with respect to which such warrant is immediately exercisable; (iii) the date on which such warrant was issued and the term of such warrant; (iv) the vesting schedule for such warrant; and (v) the exercise price per share of Company Capital Stock purchasable under such warrant. The Company has delivered to Parent accurate and complete copies of each Contract pursuant to which any warrant to purchase shares of capital stock of the Company is outstanding. Except as set forth in Parts 2.3(c), 2.3(d) and 2.3(e) of the Disclosure Schedule, there is no: (i) outstanding subscription, option, call, convertible note, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) to the best of the knowledge of the Company, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company. All outstanding shares of Company Capital Stock and all outstanding Company Options, have been issued and granted in compliance with: (i) all applicable securities laws and other applicable Legal Requirements; and (ii) all requirements set forth in all applicable Contracts. None of the outstanding shares of Company Common Stock were issued in violation of any preemptive rights or other rights to subscribe for or purchase securities of the Company. Part 2.3(f) of the Disclosure Schedule accurately identifies each Acquired Corporation Contract relating to any securities of any of the Acquired Corporations that contains any information rights, registration rights, financial statement requirements or other terms that would survive the Closing unless terminated or amended prior to the Closing. Except as set forth in Part 2.3(g) of the Disclosure Schedule, none of the Acquired Corporations has ever repurchased, redeemed or otherwise reacquired any shares of its capital stock or other securities.

Capitalization. The On the Closing Date, after giving effect to the transactions contemplated by this Agreement, the authorized share capital stock of the Company consists shall consist of (a) 180,000,000 Shares and (b) 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were 11,000,000 Ordinary Shares, of which 3,598,029 shares are issued and outstanding, (ii) no shares 5,000,000 preference shares, par value US$0.01 per share, consisting of: (A) 417,974 Series A Preferred Shares, all of the preferred stock were which are issued and outstanding, (iiiB) no 2,656,378 Series B Preferred Shares, all of which are issued and outstanding and (C) 1,255,619 Preferred Shares, all of which are issued and outstanding. On the Closing Date, after giving effect to the transactions contemplated by this Agreement, one Preferred Share shall be convertible into one Ordinary Share. Part I of Schedule 1 sets forth as of (i) immediately prior to the Closing on the Closing Date and without giving effect to the transactions contemplated by the Transaction Documents, a true and complete list of the registered shareholders of the Company and, opposite the name of each such shareholder, the amount and type of shares of the Company owned by such shareholder and (ii) immediately after the Closing on the Closing Date, a true and complete list of the registered shareholders of the Company and, opposite the name of each such shareholder, the amount and type of shares of the Company to be owned by such shareholder. The Company has reserved an aggregate of 1,480,889 Ordinary Shares were held for issuance under the Share Option Plan, of which 1,165,900 have been granted or have been agreed by the Company in its treasuryto be granted, 200,000 have been granted and exercised and 114,989 remain available for future grant. The Company has reserved an aggregate of 1,255,619 Ordinary Shares for issuance upon conversion of the Subscribed Shares. Except as set forth on the Disclosure Schedule, Part I and Part II of Schedule 1 and for Ordinary Shares reserved pursuant to the Share Option Plan, there are no options, warrants, conversion privileges, subscription or purchase rights or other rights presently outstanding to purchase or otherwise acquire (i) any authorized but unissued, unauthorized or treasury shares of the Company’s or any Subsidiary’s capital stock, (ivii) 1,345,594 any Equity Securities of the Company or any Subsidiary or (iii) any other securities of the Company or any Subsidiary, and there are no commitments, contracts, agreements, arrangements or understandings by the Company or any Subsidiary to issue any shares of the Company’s or any Subsidiary’s capital stock or any Equity Securities or other securities of the Company or any Subsidiary. The Subscribed Shares were are duly authorized, and when issued and sold to the Purchasers after payment therefor, will be validly issued, fully paid and non-assessable, will be issued in compliance with the registration and qualification requirements of all applicable securities laws, will not be subject to any preemptive right or similar rights that have not been satisfied and will be free and clear of all other Liens (other than those imposed by the Joint Venture Agreement). The Subscribed Shares to be issued and sold to General Atlantic, when issued and sold to General Atlantic, shall represent a 10.03 % fully-diluted ownership interest in the Company (assuming the completion of the Share Buyback, the grant and exercise of all options under the Share Option Plan and the conversion and exercise of all other Ordinary Share equivalents, but excluding any Ordinary Shares issuable upon conversion of the Notes). The Subscribed Shares to be issued and sold to Fidelity, when issued and sold to Fidelity, shall represent a 3.6% fully-diluted ownership interest in the Company (assuming the completion of the Share Buyback the grant and exercise of all options under the Share Option Plan and the conversion an exercise of all other Ordinary Share equivalents, but excluding Ordinary Shares issued upon conversion of the Notes). The Ordinary Shares issuable upon conversion of the Subscribed Shares have been duly reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 conversion of the Company Disclosure Letter sets forth a list Subscribed Shares and, when issued in compliance with the provisions of the Company’s outstanding OptionsM&AA will be validly issued, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessablenon-assessable, will be issued in compliance with the registration and are qualification requirements of all applicable securities laws, will not be subject to any preemptive rightsrights or similar rights that have not been satisfied and will be free and clear of all other Liens (other than those imposed by the Joint Venture Agreement). All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company Ordinary Shares are owned directly or indirectly by the Company. Except as set forth in this Section 3.3all duly authorized, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were validly issued, reserved for issuance or outstanding. Since fully paid and non-assessable, and were issued in compliance with the close registration and qualification requirements of business on the Capital Structure Date, no shares of capital stock or other equity all applicable securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Companylaws.

Capitalization. The authorized capital stock of the Company DOCP consists of (a) 180,000,000 10,000,000 DOCP Shares and (b) 20,000,000 1,000,000 shares of preferred stockstock of DOCP, par value $0.01 1.25 per share. At the close As of business on December 23August 7, 2005 1997, (the “Capital Structure Date”a) (i) 17,725,181 1,893,219 DOCP Shares were issued and outstanding, (ii) no shares all of the preferred stock which were issued validly issued, fully paid and outstandingnonassessable, (iiib) no Shares were held by the Company in its treasury, (iv) 1,345,594 168,251 DOCP Shares were reserved for issuance upon the exercise of outstanding Options stock options granted under the pursuant to DOCP employee stock plans ("DOCP Stock Plans and Options"), (vc) 200,000 shares of Series A participating preferred stock 421,309 DOCP Shares were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices upon conversion of all such Options. All outstanding Convertible Debt and Warrants of DOCP, (d) 110 DOCP Shares were held in the treasury of DOCP, (e) no DOCP Shares were held by DOCP Subsidiaries and (f) no shares of preferred stock of DOCP were issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Companyoutstanding. Except as set forth in this Section 3.3, at the close as of business on the Capital Structure DateAugust 7, 1997, no shares of capital stock or other equity voting securities of the Company DOCP were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstandingExcept as set forth in this Section 3.3, other than Shares described in clause warrants to purchase 66,150 DOCP Shares, pursuant to the Warrant Agreement, dated as of January 31, 1996, by and between DOCP and Creditanstalt Corporate Finance, Inc. (ivthe "Warrants") of and other than DOCP's 6.5% Convertible Subordinated Notes due September 1, 2003 (the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section"Convertible Debt"), the Company is not party to any outstanding optionthere are no options, warrantstock appreciation rights, call, subscription warrants or other right rights, agreements, arrangements or commitments of any character (including collectively, "Options") relating to the issued or unissued capital stock of DOCP or any preemptive right), agreement DOCP Subsidiary or commitment which (w) obligates the Company obligating DOCP or any DOCP Subsidiary to issue, deliver, grant or sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or convertible into equity interests in, DOCP or any security convertible DOCP Subsidiary. Upon consummation of the Merger, the Warrants and the Convertible Debt shall cease to represent any right to purchase or exercisable for or exchangeable into otherwise obtain any capital stock ofof DOCP or the Surviving Corporation, and all rights of the holders of such Warrants and Convertible Debt to purchase or otherwise obtain any capital stock of DOCP shall, pursuant to the terms of such instruments, solely represent the right, upon proper exercise or conversion of such instruments, to obtain an amount in cash equal to the product of the Offer Price and the number of DOCP Shares for or into which such Warrants or Convertible Debt were exercisable or convertible immediately prior to the Effective Time. Section 3.3 of the DOCP Disclosure Schedule sets forth a complete and correct list as of August 16, 1997 of the number of DOCP Shares subject to DOCP Stock Options, the exercise prices and holders thereof and the terms of all stock option plans and agreements relating thereto. Since August 7, 1997, DOCP has not issued any shares of its capital stock or Options in respect thereof, except upon the conversion of the Convertible Debt or the exercise of the Warrants or DOCP Stock Options referred to above. All outstanding DOCP Shares have been, and all DOCP Shares subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable. Except as set forth in Section 3.3 of the DOCP Disclosure Schedule, there are no outstanding contractual obligations of DOCP or any DOCP Subsidiary to repurchase, redeem or otherwise acquire any shares of DOCP Shares or any capital stock of any DOCP Subsidiary, or other equity interest make any investment (in the form of a loan, capital contribution or otherwise) in, the Company, (x) obligates the Company any DOCP Subsidiary or any other person. Except as set forth in Section 3.3 of its Subsidiaries to issuethe DOCP Disclosure Schedule, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares each outstanding share of capital stock of the Company each DOCP Subsidiary is duly authorized, validly issued, fully paid and nonassessable and is owned by DOCP or (z) relates to the wholly owned another DOCP Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on DOCP's or such other DOCP Subsidiary's voting rights, charges and other encumbrances of any shares nature whatsoever. Except as set forth in this Section 3.3, there are no outstanding bonds, debentures, notes or other indebtedness having the right to vote or convertible into or exchangeable for securities having the right to vote on any matters upon which holders of capital stock of the CompanyDOCP Shares may vote.

Capitalization. (a) The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 shares 40,000,000 Shares. As of preferred stockthe date of this Agreement, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 6,733,245 Shares were are issued and outstanding, (ii) no shares all of the preferred stock were issued and outstandingwhich are validly issued, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and (ii) zero Shares are not subject to any preemptive rights. All held in the treasury of the issued Company, (iii) zero Shares are held by the Subsidiaries, and (iv) 1,303,814 Shares are reserved for future issuance pursuant to outstanding shares of capital stock or Company Stock Options and other equity interests of each of purchase rights (the Subsidiaries of “Company Stock Awards”) granted pursuant to the Company are owned directly or indirectly by the CompanyStock Option Plans. Except as set forth in this Section 3.33.03, at there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the close of business on the Capital Structure Date, no shares of issued or unissued capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock any Subsidiary or other equity securities of obligating the Company have been issued or reserved for issuance any Subsidiary to issue or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible Subsidiary. Section 3.03 of the Disclosure Schedule sets forth the following information with respect to each Company Stock Award outstanding on the date of this Agreement: (i) the name and address of the Company Stock Award recipient; (ii) the particular plan pursuant to which such Company Stock Award was granted; (iii) the number of shares of Company common stock subject to such Company Stock Award; (iv) the exercise or exercisable for purchase price of such Company Stock Award; (v) the date on which such Company Stock Award was granted; (vi) the applicable vesting schedule; (vi) the date on which such Company Stock Award expires; (vii) the tax status (i.e., incentive stock options or exchangeable into non-qualified stock options) and (viii) whether the exercisability of or right to repurchase of such Company Stock Award will be accelerated in any capital way by the transactions contemplated by this Agreement. No options to purchase Company common stock offrom the Company are outstanding other than options granted pursuant to the Company Stock Option Plans. The Company has made available to Parent accurate and complete copies of all Company Stock Option Plans. All Shares subject to issuance as aforesaid, or other equity interest inupon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, the Companywill be duly authorized, (x) obligates validly issued, fully paid and nonassessable. There are no outstanding contractual obligations of the Company or any of its Subsidiaries Subsidiary to issuerepurchase, grant, extend redeem or enter into otherwise acquire any such option, warrant, call, right, security, commitment, contract, arrangement Shares or undertaking, (y) restricts the transfer any capital stock of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Merger. All outstanding shares of Company common stock, all outstanding Company Stock Options and all outstanding shares of capital stock of the Company or each Subsidiary have been issued and granted in compliance in all material respects with (zi) relates to the voting of any shares of capital stock of the Companyall applicable securities laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.

Capitalization. The authorized capital stock of the Company UST consists of (a) 180,000,000 Shares and (b) 20,000,000 70,000,000 shares of preferred stockUST Common Stock, par value $0.01 per share. At the close of business on December 23which, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares as of January 6, 2000, 18,660,600 shares were issued and outstanding, (ii) no and 4,000,000 shares of Series A Participating Cumulative Preferred Shares, par value $1.00 per share (the preferred stock "UST Preferred Stock"), of which, as of January 6, 2000, none were issued and outstanding. As of January 6, (iii) 2000, there were 22,118,743 shares of UST Common Stock on a fully diluted basis determined in the manner described in Section 3.2 of the UST Disclosure Schedule. Except for 1,427,180 shares of UST Common Stock that were held in treasury as of January 6, 2000, no Shares shares of UST Common Stock were held by the Company in UST or any of its treasurySubsidiaries (except for Trust Account Shares) as of January 6, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement2000. Section 3.3 All of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries UST Common Stock have been duly authorized and validly issued and are fully paid paid, non-assessable and nonassessablefree of preemptive rights, with no personal liability attaching to the ownership thereof. Except for the UST Option Agreement and rights ("UST Preferred Rights") to purchase UST Preferred Stock issued pursuant to the Rights Agreement (the "UST Rights Agreement") dated as of September 1, 1995, between UST and First Chicago Trust Company of New York, as Rights Agent, and are except as provided below, UST does not have and is not bound by any UST Rights. UST has previously provided SCHWAB with a list dated the date of this Agreement of all holders, as of January 6, 2000, of UST Rights, including the names of holders of such rights, the date of the grant or issuance of such rights, the number of shares subject to any preemptive such rights. All , the expiration date of such rights, the vesting schedule of such rights and whether such vesting schedule shall be accelerated as a result of UST's entry into this Agreement or consummation of the transactions contemplated hereby, and the price at which each such right may be exercised. Since December 31, 1999, UST has not (i) issued and outstanding any shares of its capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly any securities convertible into or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no exercisable for any shares of its capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstandingstock, other than Shares described in clause (iv) shares of the second sentence of this Section 3.3 that have been UST Common Stock issued upon the exercise or conversion of such UST Rights outstanding Options granted as of December 31, 1999, as described in the immediately preceding sentence and UST Preferred Rights associated with shares of UST Common Stock or (ii) taken any actions which would cause an antidilution adjustment under the Stock Plansany outstanding UST Rights. Except as described in this Sectionpermitted under Section 5.2, the Company is not party there are, and there will be, no outstanding contractual obligations of UST or any of its Subsidiaries to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued deliveredregister for sale, sold any shares of capital stock of UST or transferred, any of its Subsidiaries. There are no outstanding contractual obligations of UST or repurchased, redeemed any of its Subsidiaries to vote or otherwise acquired, to dispose of any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company of UST or any of its Subsidiaries to issueSubsidiaries. There are no shareholder agreements, grant, extend voting trusts or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates similar agreements relating to the voting of any shares of capital stock of the CompanyUST Common Stock to which UST is a party.

Capitalization. The authorized capital stock of the Company U.S. RealTel immediately prior to Closing consists of Fifty-Five Million (a55,000,000) 180,000,000 Shares shares, consisting of (i) Fifty Million (50,000,000) shares of Common Stock, of which Five Million Eight Hundred Seventy-Three Thousand Three Hundred Ninety-Five (5,873,395) are issued and outstanding and (bii) 20,000,000 Five Million (5,000,000) undesignated shares of preferred stock, par value $0.001 per share, none of which are outstanding. The authorized capital stock of Cypress consists of One Hundred (100) shares of common stock, par value $0.01 per share. At the close , One Hundred (100) shares of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were which are issued and outstanding, (ii) no shares of the preferred stock were issued outstanding and outstanding, (iii) no Shares were held owned by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such OptionsU.S. RealTel. All such issued and outstanding shares of capital stock of the Company and each of its Subsidiaries Issuers have been duly authorized and validly issued and issued, are fully paid and nonassessable, and are not subject have been offered, issued, sold and delivered in transactions exempt from registration under the Securities Act of 1933, as amended (the "Securities Act"), and all applicable state securities or "blue sky" laws or pursuant to any preemptive rights. All of an effective registration statement in accordance with the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the CompanySecurities Act. Except as set forth in this Section 3.3shown on Schedule 3.4(a), at there are no outstanding rights, options, warrants, conversion rights or agreements for the close purchase or acquisition from the Issuers or their Subsidiaries of business on the Capital Structure Date, no any shares of its capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of rights created by this Section 3.3 that have been issued upon Agreement and the exercise of outstanding Options granted under the Stock PlansTransaction Agreements. Except as described in expressly contemplated by this SectionAgreement, the Company is not party there are no preemptive or similar rights to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem purchase or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any acquire shares of capital stock of the Company Issuers or their Subsidiaries pursuant to any provision of law, the Certificate of Incorporation of Issuers or their Subsidiaries, the bylaws of the Issuers or their Subsidiaries or any agreement to which the Issuers or their Subsidiaries is a party, and there is no agreement or restriction (zsuch as a right of first refusal, right of first offer, proxy, voting trust or voting agreement) relates with respect to the sale or voting of any shares of capital stock of the CompanyIssuers or their Subsidiaries (whether outstanding or issuable upon conversion or exercise of outstanding securities), except as expressly contemplated by this Agreement and the Transaction Agreements. Attached hereto as Schedule 3.4(b) is a pro forma capitalization table of the Issuers giving effect to the transactions contemplated hereby, including the capitalization of each of the Subsidiaries of the Issuers.

Capitalization. The As of May 31, 2000, the authorized capital stock of the Company consists of of: (a) 180,000,000 Shares 30,000,000 shares of Common Stock, $.001 par value, of which 18,528,069 shares are issued and outstanding and of which 142,519 shares are treasury shares, and (b) 20,000,000 5,000,000 shares of preferred stockPreferred Stock, $.001 par value $0.01 per share. At the close value, of business on December 23which 300,000 are designated Series A Junior Participating Preferred, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were none of which are issued and outstanding. As of May 31, (ii) no 2000, an aggregate of 2,331,143 shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares Company's Common Stock were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for future issuance pursuant to stock options granted by Company and outstanding on May 31, 2000 and an additional 1,087,179 shares of Company's Common Stock were reserved and available for the Rights Agreementgrant of future stock options under all of Company's stock option or equity incentive plans. Section 3.3 The Shares, when issued against payment of the Company Disclosure Letter sets aggregate purchase price set forth a list in Section 2.01, will be duly authorized, validly issued, fully paid, non-assessable and free and clear of all liens and encumbrances. As of the Company’s outstanding Optionsdate hereof, including except for the exercise prices options described hereinabove or except as described in the IPO Documents, the SEC Documents or the Schedule of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and Exceptions attached hereto, there are fully paid and nonassessableno options, and are not subject warrants, convertible securities or other rights to any preemptive rights. All of the issued and outstanding purchase shares of capital stock or other equity interests securities of each of the Subsidiaries of the Company which are owned directly authorized, issued or indirectly by the Company. Except as set forth outstanding, nor is Company obligated in this Section 3.3, at the close of business on the Capital Structure Date, no any other manner to issue shares of its capital stock or other equity securities of the securities, and Company were issuedhas no obligation to purchase, reserved for issuance redeem or outstanding. Since the close of business on the Capital Structure Date, no otherwise acquire any shares of its capital stock or any interest therein or to pay any dividend or make any other equity securities of the Company have been issued or reserved for issuance or become outstandingdistribution in respect thereof, other than Shares described in clause (iv) of the second sentence of except as contemplated by this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock PlansAgreement. Except as described in this Sectionthe IPO Documents, the Company SEC Documents or the Schedule of Exceptions attached hereto, (a) no person is not party entitled to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement catch-up right, right of first refusal or commitment which (w) obligates similar right with respect to the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares issuance of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the of Company, (xb) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts there are no restrictions on the transfer of any shares of capital stock of the Company or other than those imposed by relevant federal and state securities laws and (zc) relates there exists no agreement between Company's stockholders and to which Company is a party with respect to the voting or transfer of any shares of Company's capital stock or with respect to any other aspect of the Company's affairs.

Capitalization. The As of the date of this Agreement, the authorized capital stock of the Company consists in its entirety of (ai) 180,000,000 Shares 28,000,000 shares of Company Common Stock, and (bii) 20,000,000 2,000,000 shares of preferred stock, without par value $0.01 per sharevalue, none of which were issued and outstanding as of the date of this Agreement. At the close As of business on December 23October 16, 2005 (the “Capital Structure Date”) 1998, (i) 17,725,181 Shares 6,837,400 shares of Company Common Stock were issued and outstanding, (ii) no shares of Company Common Stock were held in the preferred stock were issued treasury of the Company, and outstanding, (iii) no Shares were held by the 550,000 shares of Company in its treasury, (iv) 1,345,594 Shares Common Stock were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for future issuance pursuant to employee stock options granted pursuant to the Rights AgreementCompany Option Plans (as defined in Section 5.7). Each of the outstanding shares of capital stock of the Company were issued in compliance with all applicable federal and state laws concerning the issuance of securities. Except as set forth on Section 3.3 4.2 of the Company Disclosure Letter sets forth a list Schedule, all of the Company’s outstanding Optionsshares of capital stock of each of the Company Subsidiaries is owned beneficially and of record by the Company or a Company Subsidiary, including the exercise prices free and clear of all such OptionsEncumbrances. All issued and of the outstanding shares of capital stock of the Company and each of its the Company Subsidiaries have been duly authorized and authorized, validly issued and are fully paid and nonassessable, nonassessable and are not subject to preemptive rights created by statute, their respective charter or bylaws or any preemptive rightsagreement to which any such entity is a party or by which any such entity is bound. All The Company has heretofore delivered to Acquiror, correct and complete copies of the issued and outstanding shares of capital stock or other equity interests of Company's Stock Option Plans, in each of the Subsidiaries of the Company are owned directly or indirectly by the Companycase as currently in effect. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock 4.2 or other equity securities in Section 4.2 of the Company were issuedDisclosure Schedule, reserved for issuance or outstanding. Since the close of business on the Capital Structure Datethere are no options, no shares of capital stock warrants, puts, calls or other equity securities rights (including registration rights), agreements, arrangements or commitments of any character to which the Company or any Company Subsidiary is a party or by which any of them is bound relating to the issued or unissued capital stock, or other interest in, of the Company have been issued or reserved for issuance any Company Subsidiary or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, obligating the Company is not party or any Company Subsidiary to any outstanding optiongrant, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell deliver or transfer, or repurchase, redeem or otherwise acquiresell, or cause to be issued deliveredgranted, sold issued, delivered or transferred, or repurchased, redeemed or otherwise acquiredsold, any shares of the capital stock of, or other equity interests in, the Company or any security convertible Company Subsidiary, by sale, lease, license or exercisable for otherwise. All shares of Company Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable and will not have been issued in violation of or exchangeable into subject to any capital stock of, or other equity interest inpreemptive rights created by statute, the Company, (x) obligates articles of incorporation or bylaws of the Company or any agreement to which the Company is a party or to which the Company is bound. Except as set forth in this Section 4.2, in Section 4.2 of its Subsidiaries the Company Disclosure Schedule or in the Company Current Reports (as defined in Section 4.9), there are no outstanding contractual obligations of the Company or any Company Subsidiary to issue(x) repurchase, grantredeem or otherwise acquire any shares of Company Common Stock or any capital stock, extend or enter into other interests in, of any such option, warrant, call, right, security, commitment, contract, arrangement Company Subsidiary or undertaking, (y) restricts except for guarantees of obligations of, or loans to or capital contribution commitments, the transfer Company Subsidiaries entered into in the ordinary course of business, provide funds to, make any investment in (in the form of a loan, capital contribution or otherwise) or provide any guarantee with respect to the obligations of, any Company Subsidiary or any other person. There are no agreements, arrangements or commitments of any shares character (contingent or otherwise) pursuant to which any person is or may be entitled to receive any of the revenues or earnings, or any payment based thereon or calculated in accordance therewith, of the Company or any Company Subsidiary. Each outstanding share of capital stock, or other interest in, of each Company Subsidiary is duly authorized, validly issued, fully paid and nonassessable and, except as set forth in Section 4.2 of the Company Disclosure Schedule, each such share owned by the Company or another Company Subsidiary is owned free and clear of all Encumbrances. Except for the capital stock of the Company Subsidiaries and except for the ownership interests set forth in Section 4.2 of the Company Disclosure Schedule, the Company does not own, directly or (z) relates indirectly, any capital stock or other ownership interest in, or any interest convertible into or exchangeable or exercisable for capital stock of or other ownership interest in, any person. The Company is not aware of any voting trust, stockholder agreement or other similar arrangement relating to the voting of any shares of capital stock of the CompanyCompany Common Stock.

Capitalization. The As of the date hereof, the authorized capital stock of the Company consists of (a) 180,000,000 Shares Company, and (b) 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, is as set forth in the Company’s most recent periodic report filed with the SEC, with the exception of (i) shares issued and outstanding subsequent to the Company’s most recent periodic report filed with the SEC, which are otherwise disclosed in the SEC Documents or that do not materially change the number of shares issued and outstanding and will be disclosed in the Company’s next periodic report, (ii) no 2,917 shares of issued to independent directors in connection with services provided in the preferred stock were issued and outstandingquarter ended December 31, 2019, (iii) no Shares were held by 188 shares issued to certain service providers in connection with services provided in the Company in its treasuryquarter ended December 31, 2019, and (iv) 1,345,594 Shares were adjustment to the number of shares issued and outstanding in connection with the Company’s reverse stock split on January 15, 2020 as disclosed in the SEC Documents. Except as disclosed in the SEC Documents or in connection with recently issued convertible securities that have substantially similar terms to previously issued and disclosed convertible securities (in the principal amount of no more than $63,501.15), do not materially change the number of shares reserved for issuance upon exercise of outstanding Options granted under issuance, and will be disclosed in the Stock Plans and (v) 200,000 Company’s next periodic report, no shares of Series A participating preferred stock were are reserved for issuance pursuant to the Rights Agreement. Section 3.3 Company’s stock option plans, no shares are reserved for issuance pursuant to securities (other than the Note) exercisable for, or convertible into, or exchangeable for shares of Common Stock, and 327,230 shares are reserved for issuance upon conversion of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such OptionsNote. All issued of such outstanding shares of capital stock are, or upon issuance will be, duly authorized, validly issued, fully paid and outstanding non-assessable. No shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to preemptive rights or any preemptive rights. All other similar rights of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries shareholders of the Company are owned directly or indirectly by any liens or encumbrances imposed through the actions or failure to act of the Company. Except as set forth disclosed in the SEC Documents or described herein, as of the effective date of this Section 3.3Agreement, at the close (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of business on the Capital Structure Datefirst refusal, no shares of capital stock agreements, understandings, claims or other equity securities commitments or rights of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfercharacter whatsoever relating to, or repurchase, redeem securities or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security rights convertible or exercisable for into or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of for any shares of capital stock of the Company or (z) relates any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to the voting of any issue additional shares of capital stock of the Company or any of its Subsidiaries, (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 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 Note, Commitment Shares, Returnable Shares, or the Conversion Shares. The Company has filed in its SEC Documents true and correct copies of the Company’s Certificate of Incorporation as in effect on the date hereof (“Certificate of Incorporation”), the Company’s By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities convertible into or exercisable for Common Stock of the Company and the material rights of the holders thereof in respect thereto, with the exception of recently issued convertible securities that have substantially similar terms to previously issued and disclosed convertible securities (in the principal amount of no more than $63,501.15), do not materially change the number of shares reserved for issuance, and will be disclosed in the Company’s next periodic report. The Company shall provide the Buyer with a written update of this representation signed by the Company’s Chief Executive on behalf of the Company as of the Closing Date.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares 70,000,000 shares of Company Common Stock and (b) 20,000,000 5,000,000 shares of preferred stock, no par value $0.01 per share. At , of the close of business on December 23, 2005 Company (the “Capital Structure Date”) "COMPANY PREFERRED STOCK"). As of the date of this Agreement, (i) 17,725,181 Shares 35,538,733 shares of Company Common Stock were issued and outstanding, (ii) 1,129,229 shares of Company Common Stock have been authorized and reserved for issuance and are available for grant pursuant to the Company's stock option plans listed in Section 5.3 of the Company Disclosure Schedule (the "COMPANY STOCK OPTION PLANS"), subject to adjustment on the terms set forth in the Company Stock Option Plans, (iii) 2,599,653 Options were outstanding under the Company Stock Option Plans, (iv) 250,000 shares of Company Common Stock have been authorized and reserved for issuance pursuant to the Stock Purchase Plan, (v) no shares of the preferred stock Company Preferred Stock were issued and outstanding, (iiivi) no Shares were held by the 100,000 shares of Company in its treasury, (iv) 1,345,594 Shares were Preferred Stock have been designated as "Series B Junior Participating Cumulative Preferred Stock" and reserved for issuance upon exercise of outstanding Options granted under the Stock Plans rights (the "RIGHTS") issued pursuant to the Shareholder Rights Agreement, dated as of October 21, 1998, by and between the Company and State Street Bank and Trust Company (the "RIGHTS AGREEMENT"), and (vvii) 200,000 1,513,987 shares of Series A participating preferred stock Company Common Stock and no shares of Company Preferred Stock were held in the treasury of the Company. As of the date of this Agreement, the Company had no shares of Company Common Stock issued and outstanding or reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Optionsother than as described above. All such issued and outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid, nonassessable and each free of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and The Company has no outstanding shares of capital stock bonds, debentures, notes or other equity interests agreements or obligations the holders of each of which have the Subsidiaries right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company are owned directly or indirectly by the Companyon any matter. Except as set forth in this Section 3.3, at for the close Options (all of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company which have been issued or reserved for issuance or become outstandingunder the Company Stock Option Plans) and the Stock Purchase Plan, other than Shares described in clause (iv) of there are not at the second sentence date of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this SectionAgreement any existing options, the Company is not party to any outstanding optionwarrants, warrantcalls, callsubscriptions, subscription convertible securities, or other right (including any preemptive right)rights, agreement agreements or commitment commitments which (w) obligates obligate the Company to issue, deliver, transfer or sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company. Section 5.3 of the Company Disclosure Schedule sets forth a full list of the Options, including the name of the person to whom such Options have been granted, the number of shares subject to each Option, the per share exercise price for each Option and the vesting schedule for each Option. As of the Acceptance Date, pursuant to the Company Stock Option Plans, the Options will be fully vested and immediately exercisable. Except as set forth in Section 5.3 of the Company Disclosure Schedule, there are no agreements or understandings to which the Company or (z) relates any Material Company Subsidiary is a party with respect to the voting of any shares of capital stock of the CompanyCompany or which restrict the transfer of any such shares, nor does the Company have knowledge of any third party agreements or understandings with respect to the voting of any such shares or which restrict the transfer of any such shares. Except as set forth in Section 5.3 of the Company Disclosure Schedule, there are no outstanding contractual obligations of the Company or any Material Company Subsidiary to repurchase, redeem or otherwise acquire any shares of capital stock, partnership interests or any other securities of the Company or any Material Company Subsidiary. Except as set forth in Section 5.3 of the Company Disclosure Schedule, neither the Company nor any Material Company Subsidiary is under any obligation, contingent or otherwise, by reason of any agreement to register the offer and sale or resale of any of their securities under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "SECURITIES ACT").

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares 250,000,000 shares of Company Common Stock and (b) 20,000,000 5,000,000 shares of preferred stock. As of July 18, par value $0.01 per share2003, 70,031,724 shares of Company Common Stock were outstanding and no shares of preferred stock were outstanding. At the close As of business on December 23July 18, 2005 (the “Capital Structure Date”) 2003, (i) 17,725,181 Shares were issued and outstanding, (iithose shares set forth in Section 3.1(c) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares Disclosure Schedule were reserved for issuance and issuable upon or otherwise deliverable under the Company's Long-Term Incentive Plan, Directors' Stock Incentive Plan, Employee Defined Contribution Stock Incentive Plan, Wealth Accumulation Plan, Employee Stock Purchase Plan, and the 2003 Annual Incentive Plan (collectively, the "Company Stock Plans") in connection with the exercise of outstanding Company Options granted under and the vesting of outstanding Other Stock Plans Awards and (vii) 200,000 2,308,656 shares of Series A participating preferred stock Company Common Stock were reserved for issuance pursuant and issuable upon or otherwise deliverable in connection with Company's Liquid Yield Option Notes due 2021 issued under the (Zero Coupon-Senior) Indenture, dated as of May 4, 2001, as supplemented to the Rights Agreement. Section 3.3 of date hereof (the "Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rightsXXXXX"). All of the issued and outstanding shares of capital stock or other equity interests Company Common Stock are, and all shares of each of the Subsidiaries of Company Common Stock which may be issued pursuant to the Company are owned directly or indirectly by Stock Plans and Company XXXXX, when issued in accordance with the Companyterms of those plans, will be, validly issued, fully paid and non-assessable. Except as set forth in this Section 3.3Since July 18, at the close of business on the Capital Structure Date2003, no shares of capital stock Company Common Stock have been issued, other than upon exercise of Company Options or the Company XXXXX or the vesting of Other Stock Awards and, for purposes of Section 6.2(a), except as otherwise permitted after the date hereof in accordance with Section 4.1(d)(i). Except for the Company Common Stock, Company Options, Other Stock Awards and Company XXXXX, there are no outstanding bonds, debentures, notes or other equity indebtedness or other securities of the Company were issuedor any Subsidiary having the right to vote (or convertible into, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transferexercisable, or repurchaseexchangeable for, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Company.securities having

Capitalization. (a) The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 12,000,000 shares of preferred stockCommon Stock, par value $0.01 per shareshare par value, and 2,500,000 shares of Preferred Stock, $0.01 per share par value, 120,000 shares of which have been designated Series A Preferred Stock, $0.01 per share par value. At the close As of business on December 23September 26, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares 2003, 5,823,823 shares of Company Common Stock were issued and outstanding, (ii) outstanding and no shares of Company Common Stock were held in the preferred treasury of the Company. As of September 29, 2003, the Company had authorized 2,657,500 shares of Company Common Stock for issuance pursuant to the Company Option Plans, and the Company had granted options to purchase 1,391,888 shares of Company Common Stock under the Company Option Plans. As of September 29, 2003, the Company authorized 250,000 shares of Company Common Stock for issuance pursuant to the ESPP, 8,785 of which were subject to issuance pursuant to stock were purchase rights granted and outstanding under the ESPP. A summary of the Table of Contents outstanding options under the Company Option Plans with exercise prices less than the Merger Price is set forth in Schedule 3.2 of the Company Disclosure Schedule. As of the date hereof, no Company Preferred Shares are issued and outstanding. As of the date hereof, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were 120,000 shares of Series A Preferred Stock have been reserved for issuance upon exercise of outstanding Options granted under the rights (the “Company Rights”) distributed to the holders of Company Common Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 Agreement dated as of the Company Disclosure Letter sets forth a list of the Company’s outstanding OptionsFebruary 15, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of 2001 between the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rightsEquiserve Trust Company N.A. (the “Rights Agreement”). All of the issued and outstanding shares of capital Company Common Stock are, and all shares reserved for issuance pursuant to the Company Option Plans and the ESPP will be, upon issuance in accordance with the terms specified in the Company Option Plans and ESPP, respectively, and the agreements pursuant to which they are issuable, duly authorized, validly issued, fully paid and non-assessable. Except pursuant to the Rights Agreement, the Company Rights, the Company Option Plans, the ESPP and this Agreement, there are no outstanding subscriptions, options, warrants, rights (including “phantom” stock rights), preemptive rights or other equity interests contracts, commitments, understandings or arrangements, including any right of each of conversion or exchange under any outstanding security, instrument or agreement (together, “Options”), obligating the Subsidiaries Company to issue or sell any capital shares of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the CompanyOption with respect thereto.

Capitalization. (a) The authorized capital stock of the Company consists immediately after the Closing shall consist of (a) 180,000,000 Shares and (b) 20,000,000 shares 3,000,000 Units, of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) which (i) 17,725,181 Shares were 2,900,000 Units shall be designated Common Units, of which (A) 793,890 Common Units shall be duly and validly issued and outstanding, all of which shall be held of record by the Persons and in the amounts set forth on SCHEDULE 2.4, (iiB) no shares of the preferred stock were issued and outstanding, (iii) no Shares were Common Units shall be held by the Company in its treasury, (ivC) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans 138,770 Common Units shall be duly and (v) 200,000 shares of Series A participating preferred stock were validly reserved for issuance pursuant to the Rights Agreement. Section 3.3 of outstanding options granted by the Company Disclosure Letter sets forth a list pursuant to the Amended and Restated DonJoy, L.L.C. 1999 Option Plan (the "Option Plan"), (D) 10,029 Common Units shall be duly and validly reserved for issuance pursuant to options that may be granted after the Closing pursuant to the Option Plan, and (E) no additional Common Units shall be reserved for issuance and (ii) 100,000 Units shall be designated Preferred Units, of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been which (A) 44,405 Preferred Units shall be duly authorized and validly issued and are fully paid outstanding, all of which shall be held of record by the Persons and nonassessablein the amounts set forth on SCHEDULE 2.4, and (B) no Preferred Units shall be held by the Company in its treasury or reserved for issuance. As of immediately after the Closing, all outstanding Units of the Company have been duly and validly authorized and issued and are not subject to any preemptive rights. All of assessment by the issued and outstanding shares of Company for additional capital stock or other equity interests of contributions; provided, however, that each of the Subsidiaries member of the Company are owned directly would be liable for the amount of any distribution to such member (or indirectly by its predecessor in interest) made in violation of Section 18-607 or Section 18-804 of the Company. Except as set forth in this Section 3.3, at Limited Liability Company Act of the close State of business on Delaware (the Capital Structure Date, no shares of capital stock "LLC Act") to the extent the same is required to be returned to or other equity securities for the account of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities as provided in such Section of the Company have been issued or reserved for issuance or become outstandingLLC Act, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Companypotentially with interest.

Capitalization. The As of the date of this Agreement, the authorized capital stock of the Company Alpha consists of (ai) 180,000,000 Shares 100 million Alpha Shares, of which 62,224,580 shares are outstanding, and (bii) 20,000,000 10 million shares of preferred stock, $.01 par value $0.01 per sharevalue, none of which is outstanding. At As of the close date of business on December 23this Agreement, 2005 there are issued and outstanding options to acquire 1,269,194 Alpha Shares (the “Capital Structure DateOptions”) (i) 17,725,181 Shares were issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company). Except as set forth disclosed in this Section 3.3the Public Reports, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities as of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence date of this Section 3.3 Agreement, there are no Commitments that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates could require the Company to issue, deliver, sell or transfersell, or repurchaseotherwise cause to become outstanding any Equity Interests (other than such Options), redeem and there are no outstanding or otherwise acquireauthorized stock appreciation, phantom stock, profit participation, or cause similar rights with respect to the Company. All Equity Interests issued by Alpha have been issued in compliance with the Securities Act and applicable state securities Laws. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of the Equity Interests of Alpha. All of the Alpha Shares to be issued deliveredto Shareholders have been and are duly authorized and, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares upon consummation of the capital stock oftransactions contemplated hereby, will be validly issued, fully paid, and nonassessable. The Alpha Shares to be issued to Shareholders, at the time of issuance, will be free and clear of any restrictions on transfer (other than restrictions on transfer imposed under the Securities Act), taxes, Security Interests, options, warrants, purchase rights, contracts, commitments, equities, claims, preemptive rights and demands. There are no stockholder agreements, voting trusts or other equity interests in, the Company agreements or any security convertible understandings to which Alpha is a party or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates by which it is bound relating to the voting of any shares of capital stock Alpha Shares. The entire equity capitalization of the CompanyMerger Sub consists of its membership interests, all of which are duly authorized, validly issued and are owned of record and beneficially only by Parent.

Capitalization. The Company’s authorized capital stock as of the Company consists December 30, 2006 consisted of (a) 180,000,000 Shares and (b) 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were 60,000,000 shares of Common Stock, $0.01 par value per share, of which 18,389,862 shares are issued and outstandingoutstanding at December 30, 2006, and (ii) 1,000,000 shares of Preferred Stock, $0.01 par value per share, of which no shares are issued and outstanding at December 30, 2006. The Company has not issued any capital stock since that date other than pursuant to (i) the exercise of stock options granted to the Company’s employees and service providers pursuant to employee benefit plans and contract, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under warrants or options disclosed in the Stock Plans and SEC Filings, or (viii) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list upon conversion of the Company’s outstanding Options5.5% Redeemable Convertible Senior Notes Due 2026 (the “Convertible Notes”). The Company has no stock option or stock purchase plans or other equity incentive plans of any kind other than those described in the SEC Filings. The Conversion Shares that are contingently issuable by the Company pursuant to the Transaction Documents have been duly authorized, including and when issued in accordance with the exercise prices terms of the Transaction Documents, will be duly and validly issued, fully paid and nonassessable and will be free from all such Optionstaxes, liens and charges with respect to the issuance thereof, with the holder thereof entitled to all rights accorded to holders of Common Stock of the Company, generally. All issued and The outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, have been issued in compliance with all federal and are state securities laws, and were not subject to issued in violation of any preemptive rightsrights or similar rights to subscribe for or purchase securities. All Except as set forth herein or in the SEC Filings (including specifically the references to the agreements entered into in connection with the Convertible Notes), there are no (i) outstanding rights (including, without limitation, preemptive rights with respect to issuances by the Company of any securities, including without limitation the Securities, of the issued and outstanding Company), warrants or options to acquire, or instruments convertible into or exchangeable for, any unissued shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth interest in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the CompanySubsidiary, (xii) obligates contracts, commitments, agreements, understandings or arrangements of any kind to which the Company is a party or any of its Subsidiaries which the Company has knowledge and relating to issue, grant, extend the issuance or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer sale of any shares of capital stock of the Company or any Subsidiary, or of any such convertible or exchangeable securities or any such rights, warrants or options, (ziii) relates outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or any Subsidiary, (iv) securities or other instruments containing anti-dilution or similar provisions that will be triggered by the issuance of any of the Securities under this Agreement, or (v) stock appreciation rights or “phantom stock” plans or agreements or any similar plan or arrangement. No further approval or authorization of any stockholder, the Board of Directors of the Company or others is required for the issuance and sale of the Securities. The Company owns the entire equity interest in each of its Subsidiaries, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest, other than as described in the SEC Filings. The Company has no outstanding indebtedness for borrowed money and no agreement regarding borrowings, other than pursuant to the Convertible Notes and that certain Loan and Security Agreement, dated as of July 21, 2005, as amended (the “SVB Indebtedness”). Except as disclosed in the SEC Filings, there are no shareholder rights plans, stockholders agreements, voting of any shares of capital stock agreements or other similar agreements with respect to the Common Stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.

Capitalization. The Company has the duly authorized and validly outstanding capitalization set forth under the caption "Capitalization" in the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) and will have the adjusted capitalization set forth therein on the Closing Date and the Option Closing Date, based on the assumptions and including the exceptions set forth therein and the footnotes thereto. The capital stock of the Company consists of conforms in all material respects to the description thereof contained in the Prospectus (a) 180,000,000 Shares and (b) 20,000,000 or, if the Prospectus is not in existence, the most recent Preliminary Prospectus). The outstanding shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were Common Stock have been duly authorized and validly issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company and are fully paid and nonassessable. Except as created hereby or described in its treasurythe Prospectus (or, (iv) 1,345,594 Shares were reserved for issuance upon exercise of if the Prospectus is not in existence, the most recent Preliminary Prospectus), there are no outstanding Options granted under options, warrants, rights or other arrangements requiring the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant Company at any time to the Rights Agreementissue any capital stock. Section 3.3 As of the Company Disclosure Letter sets forth a list Closing Date, no holders of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Shares, other than those which have been waived or satisfied, and each neither the filing of its Subsidiaries the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement gives rise to any rights, other than those that have been waived or satisfied, for or relating to, the registration of any securities of the Company. All offers and sales of the Company's capital stock prior to the date hereof were at all relevant times exempt from the registration requirements of the Act and were duly registered with or the subject of an available exemption from the registration requirements of the applicable state securities or Blue Sky laws. The Shares have been duly authorized authorized; on the Closing Date or the Option Closing Date (as the case may be), after payment therefor in accordance with the terms of this Agreement, (i) the Firm Shares and the Additional Shares to be sold by the Company hereunder will be validly issued and are issued, fully paid and nonassessable, and are not subject (ii) good and marketable title to the Shares will pass to the Underwriters on the Closing Date or the Option Closing Date (as the case may be) free and clear of any preemptive rights. All of the issued and outstanding shares of capital stock lien, encumbrance, security interest, claim or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Companyrestriction whatsoever.

Capitalization. The authorized capital stock of the Company consists of (ai) 180,000,000 Shares 35,000,000 shares of Common Stock and (bii) 20,000,000 5,000,000 shares of preferred stock, $0.01 par value $0.01 per share, none of which is issued and outstanding and none of which is held in treasury. At the close As of business on December 23March 16, 2005 (the “Capital Structure Date”) 2000, (i) 17,725,181 Shares 8,005,037 shares of Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable, and none of which were held in treasury, (ii) no shares of Common Stock were held by subsidiaries of the preferred stock were issued Company and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares 1,091,834 shares of Common Stock were reserved for future issuance upon exercise of pursuant to outstanding Stock Options granted under the Company Stock Option Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. agreements listed in Section 3.3 2.3 of the Company Disclosure Letter Schedule. No material change in such capitalization has occurred between September 30, 1999 and the date hereof. Section 2.3 of the Company Disclosure Schedule sets forth a true and complete list of all outstanding options, warrants and other rights for the Company’s outstanding Optionspurchase of, including or conversion into or exchange for Common Stock, the name of each holder thereof, the number of shares purchasable thereunder or upon conversion or exchange thereof and the per share exercise prices or conversion price or exchange rate of all such Optionseach option, warrant and other right. All issued and outstanding shares There are no options, warrants or other similar rights, agreements, arrangements, commitments or understanding, whether or not in writing, of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject any character relating to any preemptive rights. All of the issued and outstanding shares of or unissued capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close any of business on the Capital Structure Date, no shares of capital stock its subsidiaries or other equity securities of obligating the Company have been issued or reserved for issuance any of its subsidiaries to issue (whether upon conversion, exchange or become outstanding, other than Shares described in clause (ivotherwise) or sell any share of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company in or any security convertible or exercisable for or exchangeable into any capital stock other securities of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries subsidiaries other than those listed in Section 2.3 of the Company Disclosure Schedule. All securities subject to issueissuance as aforesaid upon issuance on the term and conditions specified in the instruments pursuant to which they are issuable shall be duly authorized, grantvalidly issued, extend fully paid and nonassessable. There are no obligations, contingent or enter into otherwise, of the Company of any of its subsidiaries to repurchase, redeem or otherwise acquire any shares of Common Stock or capital stock of any subsidiary or any other securities of the Company or any of its subsidiaries or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any such option, warrant, call, right, security, commitment, contract, arrangement subsidiary or undertaking, (y) restricts any other entity. All of the transfer of any outstanding shares of capital stock of each of the Company's subsidiaries are duly authorized, validly issued, fully paid and nonassessable, and all such shares are owned by the Company or (z) relates to another subsidiary of the Company free and clear of all security interests, liens, claims, pledges, agreements, limitations in the Company's voting rights, charges or other encumbrances of any shares of capital stock of the Companynature whatsoever (collectively, "Liens").

Capitalization. (a) The authorized capital stock of the Company consists of (a) 180,000,000 Shares 6,000,000 shares of Company Common Stock and (b) 20,000,000 2,500,000 shares of preferred stock, par value $0.01 .01 per share. At the close of business on December 23, 2005 share (the “Capital Structure Date”) "Company Preferred Stock"). As of July 15, 1998, there were 1,706,666 shares of Company Common Stock outstanding and 478,334 shares of Company Common Stock held by the Company as treasury stock. As of July 15, 1998, there were (i) 17,725,181 Shares were issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were Common Stock reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and stock options or otherwise except for (vx) 200,000 171,766 shares of Series A participating preferred stock were Company Common Stock reserved for issuance pursuant to the Rights Agreement. Company Option Plans and described in Section 3.3 4.2(a) of the Company Disclosure Letter sets forth a list Schedule and (y) 339,627 shares of Company Common Stock reserved for issuance upon exercise of the option to be issued to Parent pursuant to the Stock Option Agreement and (ii) no shares of Company Preferred Stock issued or outstanding, held in the Company’s 's treasury or reserved for issuance upon exercise of outstanding Options, including the exercise prices of all such Optionsstock options or otherwise. All of the issued and outstanding shares of capital stock of the Company and each of its Subsidiaries Common Stock have been duly authorized and validly issued and are fully paid paid, nonassessable and nonassessablefree of preemptive rights, with no personal liability attaching to the ownership thereof. Except as referred to above or reflected in Section 4.2(a) of the Company Disclosure Schedule, and are except for the Stock Option Agreement, the Company does not have and is not bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase or issuance of any shares of Company Common Stock or Company Preferred Stock or any other equity security of the Company or any securities representing the right to purchase or otherwise receive any shares of Company Common Stock or any other equity security of the Company. The names of the optionees, the date of each option to purchase Company Common Stock granted, the number of shares subject to any preemptive rights. All each such option, the expiration date of each such option, and the price at which each such option may be exercised under the Company Option Plans are set forth in Section 4.2(a) of the issued Company Disclosure Schedule. (b) Section 4.2(b) of the Company Disclosure Schedule sets forth a true and outstanding shares correct list of capital stock or other equity interests of each all of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.34.2(b) of the Company Disclosure Schedule, at the close Company owns, directly or indirectly, all of business on the Capital Structure Dateissued and outstanding shares of the capital stock of each of such Subsidiaries, free and clear of all liens, charges, encumbrances and security interests whatsoever, and all of such shares are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof. No Subsidiary of the Company has or is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase or issuance of any shares of capital stock or any other equity security of such Subsidiary or any securities of representing the Company were issued, reserved for issuance right to purchase or outstanding. Since the close of business on the Capital Structure Date, no otherwise receive any shares of capital stock or any other equity securities security of such Subsidiary. Assuming compliance by Parent with Section 1.5 hereof, at the Company have been issued or reserved for issuance or become outstandingEffective Time, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is there will not party to be any outstanding optionsubscriptions, warrantoptions, callwarrants, subscription calls, commitments or other right (including agreements of any preemptive right), agreement or commitment character by which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend will be bound calling for the purchase or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer issuance of any shares of the capital stock of the Company or (z) relates to the voting any of any shares of capital stock of the Company.its Subsidiaries. 4.3

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 100,000,000 Shares and (b) 20,000,000 25,000,000 shares of preferred stock, par value $0.01 per shareshare (the "Preferred Shares"). At As of the close of business on December 23, 2005 the last Business Day immediately preceding the date hereof (the “Capital Structure "Measurement Date”"), (a) (i) 17,725,181 17,708,686 Shares were issued and outstanding (not treating any treasury shares as outstanding), each of which was duly authorized, validly issued, fully paid and nonassessable and issued free of any preemptive rights,(b) no Preferred Shares were issued or outstanding, (iic) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 5,000,000 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans Option Plans, and (vd) 200,000 shares of Series A participating preferred stock options to purchase 1,227,350 Shares in the aggregate were reserved for issuance pursuant to outstanding under the Rights Agreement. Stock Option Plans as more particularly described in Section 3.3 of the Company Disclosure Letter sets forth a list of (including the Company’s outstanding Optionsholders thereof, including the expiration date, the exercise prices thereof and the dates of all such Optionsgrant). All issued and outstanding Since the Measurement Date, no additional shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessableno other options, and are not subject warrants or other rights to any preemptive rights. All acquire shares of the issued and Company's capital stock (collectively, the "Rights to Acquire") have been granted. Except as described in the second preceding sentence, the Company has no outstanding shares bonds, debentures, notes or other securities or obligations the holders of which have the right to vote or which are convertible into or exercisable for voting securities, capital stock or other equity or ownership interests of each of the Subsidiaries of the Company are owned directly or indirectly by in the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities 3.3 of the Company were issuedDisclosure Letter, reserved for issuance or outstanding. Since the close of business on the Capital Structure Datethere are not any existing options, no shares of capital stock warrants, calls, subscriptions, convertible securities or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party Rights to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment Acquire which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates obligate the Company or any of its Subsidiaries to issue, grantexchange, extend transfer or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of sell any shares of capital stock of the Company or any of its Subsidiaries other than Shares issuable under the Stock Option Plans or awards granted pursuant thereto. There are no outstanding contractual obligations of the Company or any of its Subsidiaries (za) relates to the voting of repurchase, redeem or otherwise acquire any shares of capital stock of the CompanyCompany or any of its Subsidiaries, or (b) to vote or to dispose of any shares of the capital stock of any of its Subsidiaries. After the Merger, none of the Company or any of its Subsidiaries will have any obligation to issue, transfer or sell any shares of its capital stock or other securities pursuant to any employee benefit plan or otherwise.

Capitalization. The authorized capital stock of the Company consists and the shares thereof issued and outstanding as of (athe Effective Date are set forth in the Registration Statement or on SCHEDULE 3.1(c) 180,000,000 Shares and (b) 20,000,000 attached hereto. All of the outstanding shares of preferred stockCommon Stock have been duly and validly authorized, par value $0.01 per shareand are fully paid and nonassessable. At Except as set forth in this Agreement or as set forth in the close Commission Documents, the Commission Filings or on SCHEDULE 3.1(c) attached hereto, as of business on December 23the Effective Date, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) no shares of the preferred stock were issued Common Stock are entitled to preemptive rights or registration rights and outstandingthere are no outstanding options, (iii) no Shares were held by the Company in its treasurywarrants, (iv) 1,345,594 Shares were reserved for issuance upon exercise scrip, rights to subscribe to, call or commitments of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Optionsany character whatsoever relating to, including the exercise prices of all such Options. All issued and outstanding or securities or rights convertible into, any shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessableCompany. Furthermore, and are not subject to any preemptive rights. All except as set forth in this Agreement, the Commission Documents, the Commission Filings or on SCHEDULE 3.1(c) attached hereto, as of the issued and outstanding Effective Date, there are no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, securities or rights convertible into shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3the Commission Documents, at the close of business Commission Filings or on the Capital Structure DateSCHEDULE 3.1(c) attached hereto, no shares of capital stock or other equity securities as of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Effective Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not a party to to, and it has no knowledge of, any outstanding option, warrant, call, subscription agreement restricting the voting or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, transfer of any shares of the capital stock ofof the Company. Except as set forth in the Commission Documents, the Commission Filings or on SCHEDULE 3.1(c) attached hereto, the offer and sale of all capital stock, convertible securities, rights, warrants, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock options of the Company or (z) relates issued prior to the voting Closing complied with all applicable federal and state securities laws, and no stockholder has a right of any shares of capital stock rescission or damages with respect thereto which would have a Material Adverse Effect. The Company has furnished or made available to the Purchaser true and correct copies of the Company's Certificate of Incorporation as in effect on the Effective Date (the "Articles"), and the Company's Bylaws as in effect on the Effective Date (the "Bylaws").

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) no shares As of the preferred stock were issued date of this Agreement, Proppants has good and outstandingvalid title to, (iii) no Shares were held holds of record and owns all of the outstanding Xxxxx Membership Interests, free and clear of any Liens other than transfer restrictions imposed thereon by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted securities Law or arising under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Xxxxx LLC Agreement. Section 3.3 As of the Company Disclosure Letter sets forth a list date of this Agreement, there are no outstanding equity interests in Xxxxx other than the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rightsXxxxx Membership Interests. All of the outstanding membership interests in Xxxxx are duly authorized, validly issued and outstanding shares of capital stock or other equity interests of each fully paid (to the extent required by the Xxxxx LLC Agreement) and nonassessable (except as such nonassessability may be effected by Section 18-607 of the Subsidiaries Delaware LLC Act), and were issued free of preemptive rights in compliance with applicable Laws. (b) Upon consummation of the Company are owned directly transactions contemplated by this Agreement, the Partnership will acquire good and valid title to all of the Contributed Interests, free and clear of any Liens other than transfer restrictions imposed thereon by securities Laws or indirectly by arising under the CompanyXxxxx LLC Agreement. (c) Except as set forth in this Section 3.3Schedule 4.2(c), at the close of business on the Capital Structure Datethere are no voting agreements, no shares of capital stock proxies or other equity securities of similar agreements or understandings with respect to the Company were issuedContributed Interests. (d) There are no outstanding options, reserved for issuance or outstanding. Since the close of business on the Capital Structure Datewarrants, no shares of capital stock rights or other equity securities convertible into or exchangeable or exercisable for limited liability company interests of the Company have been Xxxxx issued or reserved granted by Xxxxx, any other commitments or agreements to which Xxxxx is a party providing for the issuance by it of additional limited liability company interests or become outstandingthe repurchase or redemption by it of limited liability company interests, other than Shares described in clause (iv) and there are no agreements of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment kind which (w) obligates the Company may 15 obligate Xxxxx to issue, deliver, sell or transfer, or repurchasepurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or acquire any of its Subsidiaries to issuelimited liability company interests, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts except as are provided in the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Company.Xxxxx LLC Agreement. Section 4.3

Capitalization. (a) The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were an unlimited number of Company Common Shares, of which 93,714,209 (and no more) are issued and outstanding, (ii) an unlimited number of Company Class A Preferred Shares, of which 18,213,356 Company Class A Series-1 Preferred Shares (and no shares of the preferred stock were more) and 7,100,592 Company Class A Series-2 Preferred Shares (and no more) are issued and outstanding, (iii) an unlimited number of Company Class B Preferred Shares, of which 89,214,209 (and no Shares were held by the Company in its treasurymore) are issued and outstanding, and (iv) 1,345,594 an unlimited number of Company Voting Common Shares, none of which have been issued as at the date hereof. The outstanding Company Common Shares, Company Class A Preferred Shares and Company Class B Preferred Shares (collectively, the "Outstanding Shares") are all duly and validly authorized and issued, fully paid and non-assessable, were reserved for issued in compliance with, and not in violation of, all applicable laws concerning the issuance upon exercise of outstanding Options granted under securities, and all necessary filings, approvals and consents have been obtained in connection with such issuances. In addition, (i) no Company Common Shares are held in the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list treasury of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and (ii) no Company Class B Preferred Shares are not subject to any preemptive rights. All held in the treasury of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except Each Company Preferred Share is convertible into Company Common Shares, in accordance with the Articles. There are no other Company Preferred Shares outstanding. As of the date hereof, the Outstanding Shares are owned as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (ivSECTION 3.04(a) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock PlansDisclosure Schedule, which schedule identifies all Founders. Except as described in this Section, the The Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates and has been since inception a private company within the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares meaning of the capital stock of, or other equity interests in, the Securities Act (Ontario). Exhibit A hereto sets forth all outstanding Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the CompanyShares.

Capitalization. The As of the date hereof, the authorized capital stock of the Company consists is as set forth on Schedule 3.5(a). Of such authorized capital stock, as of (a) 180,000,000 Shares the date hereof, there are issued and (b) 20,000,000 outstanding [***] shares of preferred stockClass A Common Stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) no shares of the preferred stock were issued Class B Common Stock, [***] shares of Series A Preferred Stock, [***] shares of Series B Preferred Stock, and outstanding, (iii) no Shares were shares of capital are held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been are duly authorized and authorized, validly issued and are outstanding, fully paid and nonassessablenonassessable and were issued free of preemptive rights in compliance with applicable corporate and securities Legal Requirements. As of the date hereof, there are [***] shares of Common Stock reserved for issuance under the Company Incentive Compensation Plan. As of the date hereof, there are outstanding options that have been granted by the Company, whether vested or unvested, to purchase an aggregate of [***] shares of Common Stock (the “Company Options”) and warrants, whether vested or unvested, to purchase an aggregate of [***] [***] These portions of this exhibit have been omitted and filed separately with the Commission pursuant to a request for confidential treatment. shares of Common Stock (the “Company Warrants”). Except for the Preferred Stock, the Company Options, the Company Warrants, or as set forth on Schedule 3.5(b), there are no outstanding rights, including stock appreciation rights, phantom stock, profit participations, subscriptions, warrants, puts, calls, unsatisfied preemptive rights, options or other agreements of any kind relating to, or the value of which is tied to the value of, any of the outstanding, authorized but not issued, unauthorized or treasury shares of the capital stock or any other security of the Company, and are not subject to there is no authorized or outstanding security of any preemptive rights. All of the issued and outstanding shares of kind convertible into or exchangeable for any such capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Companysecurity. Except as set forth in this Section 3.3on Schedule 3.5(b), at the close of business on the Capital Structure Date, there are no shares of capital stock or other equity securities of restrictions imposed by the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock or otherwise pertaining to the securities (including, but not limited to, the ability to pay dividends thereon) or retained earnings of the Company or (z) relates the ownership thereof other than those imposed by the Securities Act or applicable state securities laws. Except as set forth on Schedule 3.5(c), there are no stockholder agreements, voting trusts, proxies or other agreements or understandings with respect to the voting or transfer of any shares Company Stock. Schedule 3.5(d) sets forth, as of capital stock the date hereof, a true and correct list of (i) the name and address of each holder of Company Stock, Company Options and Company Warrants, (ii) the number and class of each such holder’s Company Stock, Company Options and Company Warrants, (iii) the exercise price with respect to each of the Company Options and Warrants and (iv) the grant date and vesting schedule with respect to each Company Option and Company Warrant (assuming that no acceleration provisions have been triggered). Each share of Series A Preferred Stock is convertible into one share of Common Stock and has a Liquidation Preference (as such term is defined in the Certificate of Incorporation of the Company) equal to the greater of: (1) $[***], (2) the Other Common Per Share Merger Consideration and (3) the Cash Common Per Share Merger Consideration. No dividends or other distributions have been accrued or declared with respect to the Series A Preferred Stock. The vote of two-thirds of the outstanding shares of Series A Preferred Stock is the vote required to require the conversion of each share of Series A Preferred Stock into one share of Common Stock in accordance with the Company’s Governing Documents. Each share of Series B Preferred Stock is convertible into one share of Common Stock and has a Liquidation Preference (as such term is defined in the Certificate of Incorporation of the Company) equal to the greater of: (1) $[***], (2) the Other Common Per Share Merger Consideration and (3) the Cash Common Per Share Merger Consideration. No dividends or other distributions have been accrued or declared with respect to the Series B Preferred Stock. The vote of two-thirds of the outstanding shares of Series B Preferred Stock is the vote required to require the conversion of each share of Series B Preferred Stock into one share of Common Stock in accordance with the Company’s Governing Documents. [***] These portions of this exhibit have been omitted and filed separately with the Commission pursuant to a request for confidential treatment.

Capitalization. (i) The authorized capital stock of the Company 9 consists of (a) 180,000,000 Shares and (b) 20,000,000 shares 1,250,000,000 Ordinary Shares, of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were which 60,458,655.5 are issued and outstandingoutstanding as of June 3, (ii) no shares of 2016. Except as set forth in the preferred stock were issued SEC Documents and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved except for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance any convertible notes issuable pursuant to the Rights Convertible Note Purchase Agreement. Section 3.3 , the Company has no outstanding bonds, debentures, notes or other obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the shareholders of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Optionson any matter. All issued and outstanding shares of capital stock of the Company Ordinary Shares and each of its Subsidiaries ADSs have been duly authorized and validly issued and are fully paid and nonassessablenon-assessable, are free of preemptive rights, were issued in compliance with applicable U.S. and other applicable securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal, or similar right and are or will be duly listed and admitted and authorized for trading on the NYSE. (ii) Except as set forth above in this Section 4.1(g) and in the SEC Documents and except for any convertible notes issuable pursuant to the Convertible Note Purchase Agreement, there are no outstanding (A) shares of capital stock or voting securities of the Company, (B) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (C) preemptive or other outstanding rights, options, warrants, conversion rights, “phantom” stock rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the Company to issue or sell any shares of capital stock or other securities of the Company or any securities or obligations convertible or exchangeable into or exercisable for, or giving any person a right to subscribe for or acquire, any securities of the Company, and no securities or obligations evidencing such rights are not subject authorized, issued or outstanding. (iii) Except as disclosed in the SEC Documents or the registration right granted in connection with the issuance of the convertible notes issuable pursuant to the Convertible Note Purchase Agreement, there are no registration rights, rights of first offer, rights of first refusal, tag-along rights, director appointment rights, governance rights or other similar rights with respect to the securities of the Company or any Significant Subsidiary of the Company that have been granted to any preemptive rightsPerson. (iv) All of the issued and outstanding shares of capital stock or other equity securities or ownership interests of each of the Significant Subsidiaries of are duly authorized, validly issued, fully paid and non-assessable and all such shares or other securities or ownership interests in any Significant Subsidiaries (except for directors’ qualifying shares or other ownership interests required to be held by directors under applicable law) are owned, directly or indirectly, by the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer free and clear of any shares of capital stock of the Company or liens. (z) relates to the voting of any shares of capital stock of the Company.h)

Capitalization. (a) The authorized capital stock of the Company consists of (a) 180,000,000 Shares 250,000,000 shares of Common Stock and (b) 20,000,000 no shares of preferred stock. As of July 29, par value $0.01 per share. At the close of business on December 232005, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares 59,777,962 shares of Common Stock (not including 36,716,225 shares of Common Stock owned by RBK Holdings plc) were issued and outstanding, all of which were duly authorized, validly issued, fully paid and nonassessable and were issued free of preemptive rights, (ii) no 7,078,626 shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares Common Stock were reserved for issuance upon or otherwise deliverable in connection with the exercise or payment of outstanding Company Stock Options or Deferred Share Awards issued or granted under pursuant to the Company Stock Plans and Plans, (viii) 200,000 124,000,000 shares of Series A participating preferred stock Common Stock were reserved for issuance upon the exercise of the rights (the "Company Rights") issued pursuant to the Company's Common Stock Rights Agreement, dated June 14, 1990, between the Company and American Stock Transfer and Trust Company, as rights agent, as amended (the "Company Rights Agreement"), and (iv) no other shares of Common Stock are reserved for issuance by the Company. From July 29, 2005 through the date of this Agreement, the only shares of Common Stock issued have been pursuant to the Company Stock Options listed in Section 3.3 3.3(a)(i) of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such OptionsSchedule. All issued and outstanding shares of capital stock Section 3.3(a)(i) of the Company Disclosure Schedule sets forth, as of the date of this Agreement, all outstanding Company Stock Options, grouped by grant date and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessableexercise price, and are not subject to any preemptive rightsDeferred Share Awards, in the aggregate. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries Section 3.3(a)(ii) of the Company are owned directly or indirectly Disclosure Schedule sets forth the number of warrants issued by the CompanyCompany to National Football League Properties, Inc., the number of shares issuable or deliverable upon exercise thereof, the vesting schedule (if applicable), the expiration date and the exercise price relating thereto. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities 3.3(a)(i) and Section 3.3(a)(ii) of the Company were issuedDisclosure Schedule and except for the Company Rights and the Company's 2.00% Convertible Debentures due May 1, reserved for issuance or outstanding. Since 2024, the close terms of business on which are governed by the Capital Structure DateIndenture, dated as of April 30, 2004, between the Company and U.S. Bank National Association, as trustee, and the Company's Series B 2.00% Convertible Debentures due May 1, 2024, the terms of which are governed by the Indenture, dated as of November 29, 2004, between the Company and U.S. Bank National Association, as trustee (collectively, the "Convertible Debentures"), (A) there are no shares of capital stock outstanding options, warrants, calls, convertible securities, preemptive rights or other equity securities rights of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment kind which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates obligate the Company or any of its Subsidiaries subsidiaries to issueissue or deliver, grantor giving any person a right to subscribe for or acquire from the Company or its subsidiaries, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock stock, voting securities or other equity or ownership interests of the Company or any securities or obligations convertible or exchangeable into or exercisable for any shares of capital stock, voting securities or other equity or ownership interests of the Company (z"Company Securities"), (B) relates there are no outstanding obligations of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any Company Securities and (C) there are no voting agreements, proxies, shareholder agreements or similar arrangements relating to the voting of any issued or unissued Company Securities to which the Company or any of its subsidiaries is a party. RBK Holdings plc owns 36,716,225 shares of capital stock Common Stock, and no other subsidiary of the CompanyCompany owns any Company Securities.

Capitalization. The authorized capital stock As of the Company consists Closing Date, the membership interests of Yabbly will consist of three classes of limited liability company interests, (a) 180,000,000 Shares all of which have identical preferences and rights except as expressly set forth in the Operating Agreement of Yabbly, and (b) 20,000,000 shares all of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were which are held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets Persons set forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rightson Schedule 4.3. All of the outstanding membership interests in Yabbly are validly issued, fully paid and nonassessable and were not issued and outstanding shares in violation of capital stock any preemptive or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Companysimilar rights. Except as set forth on Schedule 4.3 or in this Section 3.3the Organizational Documents of Yabbly, at the close there are no agreements, arrangements, options, warrants, calls, subscription rights, preemptive rights, rights of business on the Capital Structure Date, no shares of capital stock first refusal or other equity rights or commitments of any character outstanding relating to the issuance, sale, distribution, transfer, purchase, redemption or exchange of any membership interests or other ownership interests in Yabbly, there are no outstanding securities or other instruments convertible into or exchangeable for membership interests or other securities of Yabbly, and there are no outstanding membership interest appreciation rights, phantom membership interests, or similar rights outstanding with respect to the Company were issuedmembership interests. There are no proxies, reserved for issuance voting trusts, voting agreements or outstanding. Since similar Contracts, and no shareholders agreements, buy-sell agreements, redemption agreements, cross-purchase agreements, registration rights agreements, or similar Contracts, relating to the close of business on the Capital Structure Date, no shares of capital stock membership interests or any other equity securities of Yabbly, except as set forth in the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) Organizational Documents of Yabbly. Upon the consummation of the second sentence of this Section 3.3 Closing, there will be no dividends or distributions on any membership interests that have been declared that have not been paid or distributed in full. None of the issued upon the exercise or outstanding membership interests was or has been issued, offered, sold, assigned, distributed, repurchased and/or otherwise transferred in violation of outstanding Options granted under the Stock Plans. Except as described in this SectionYabbly’s Organizational Documents, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company Securities Act or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the CompanyLegal Requirement.

Capitalization. The authorized capital stock of the Company InSight consists of twenty-five million (a25,000,000) 180,000,000 Shares shares of common stock, par value $0.001 per share, and three million five hundred thousand (b3,500,000) 20,000,000 shares of preferred stock, par value $0.01 0.001 per shareshare ("InSight Preferred Stock"). At As of the close of business on December 23date hereof, 2005 one thousand (the “Capital Structure Date”1,000) (i) 17,725,181 InSight Shares were are issued and outstanding, (ii) outstanding and owned of record and beneficially only by AHSC and MHC in equal proportions. There are no shares of the preferred stock were issued and InSight Preferred Stock outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding InSight Shares are validly issued, fully paid, nonassessable and free of preemptive rights or similar rights created by statute, the Certificate of Incorporation or Bylaws of InSight or any agreement to which InSight or any of its subsidiaries is a party or by which it is bound. There are not now, and at the Effective Time there will not be, any other shares of capital stock of InSight issued or outstanding or any options, warrants, subscriptions, calls, rights, convertible securities or other equity interests agreements or commitments obligating InSight to issue, transfer or sell any shares of its capital stock except pursuant to this Agreement, that certain Preferred Stock Acquisition Agreement dated on or about the date hereof, by and among AHC, MHC, InSight and General Electric Company acting through GE Medical Systems, and those certain agreements dated February 23, 1996, by and among each of the Subsidiaries preferred stockholders of the AHSC and InSight, AHSC, Maxum and General Electric Company are owned directly or indirectly by the Companyacting through GE Medical Systems ("Preferred Stockholders Agreements"). Except as set forth provided for in this Section 3.3Agreement, at after the close of business on the Capital Structure DateEffective Time, InSight will have no obligation to issue, transfer or sell any shares of its capital stock pursuant to any employee benefit plan or other equity securities of the Company were issued, reserved for issuance or outstandingotherwise. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other Other than Shares described in clause (iv) of the second sentence of as contemplated by this Section 3.3 that have been issued upon and Section 7.7 hereof, immediately after the exercise of outstanding Options granted under the Stock Plans. Except as described in this SectionEffective Time, the Company is not party to any outstanding there will be no option, warrant, call, subscription right or other right (including agreement obligating InSight or any preemptive right), agreement or commitment which (w) obligates the Company subsidiary to issue, deliver, sell deliver or transfer, or repurchase, redeem or otherwise acquiresell, or cause to be issued deliveredissued, sold delivered or transferred, or repurchased, redeemed or otherwise acquiredsold, any shares of the capital stock of, InSight Shares or other equity interests in, the Company obligating InSight or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries subsidiary to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement right or undertaking, (y) restricts agreement. All of the transfer of any shares of issued and outstanding capital stock of the Company or AHSC Sub and MHC Sub is owned beneficially and of record by InSight and, in each case, consists solely of one thousand (z1,000) relates to the voting of any shares of capital stock of the Companycommon stock, $0.001 par value per share.

Capitalization. (a) The authorized capital stock of the Company consists of 20,000,000 shares of Common Stock (a) 180,000,000 Shares and (b) 20,000,000 the "Company Shares"), 2,000,000 shares of preferred stock, par value $0.01 10.00 per share. At the close of business on December 23, 2005 share (the “Capital Structure Date”"$10.00 Preferred") and 69,790 shares of preferred stock, par value $8.00 per share (the "$8.00 Preferred", and together with the $10.00 Preferred, the "Preferred Stock"). As of the date hereof, (i) 17,725,181 7,941,379 Shares were are issued and outstanding, (ii) no shares Shares are issued and held in the treasury of the preferred stock were issued and outstandingCompany, (iii) no Shares were held by the Company in its treasuryshares of Preferred Stock are issued or outstanding, (iv) 1,345,594 1,511,000 Shares were are reserved for issuance upon exercise of outstanding Options granted under the Stock Option Plans and (v) 200,000 shares of Series A participating preferred stock were 150,000 Shares are reserved for issuance upon exercise of outstanding warrants. Section 3.2 of the Company's Disclosure Schedule sets forth the exercise xxxxx, xxxxx date and expiration date for all outstanding Options. All the outstanding Shares of the Company's capital stock are, and all Shares which may be issued pursuant to the Rights Agreementexercise of outstanding options will be, when issued in accordance with the respective terms thereof, duly authorized, validly issued, fully paid and non-assessable. Except as set forth in Section 3.3 3.2 of the Disclosure Schedule there are no bonds, debentures, notes or other indebtedness having general voting rights (or convertible into securities having such rights) ("Voting Debt") of the Company Disclosure Letter sets or any of its Subsidiaries issued and outstanding. Except as set forth a list above and except for the transactions contemplated by this Agreement, as of the Company’s outstanding Optionsdate hereof, including the exercise prices of all such Options. All issued and outstanding (i) there are no shares of capital stock of the Company and each or any of its Subsidiaries have been duly authorized and validly authorized, issued and or outstanding, (ii) there are fully paid and nonassessableno existing options, and are not subject to any warrants, calls, preemptive rights. All , subscriptions or other rights, agreements, arrangements or commitments of any character, relating to the issued and outstanding shares of or unissued capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock ofof its Subsidiaries, or other equity interest in, the Company, (x) obligates obligating the Company or any of its Subsidiaries to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or equity interests, or obligating the Company or any of its Subsidiaries to grant, extend or enter into any such option, warrant, call, subscription or other right, security, commitment, contractagreement, arrangement or undertakingcommitment, and (yiii) restricts the transfer of any shares of capital stock there are no outstanding contractual obligations of the Company or (z) relates any of its Subsidiaries to the voting of repurchase, redeem or otherwise acquire any shares of Shares, or any capital stock of the Company, or any Subsidiary or affiliate of the Company or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary or any other entity.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 10,000,000 shares of preferred stockCompany Common Stock, no par value $0.01 per shareshare and no other form of equity shares are authorized. At As of the close of business on December 2331, 2005 2004(the "Company Measurement Date"), (a)no more than ten million (10,000,000) shares of Company Common Stock were issued and outstanding (the “Capital Structure Date”"Outstanding Shares"), (b) (i) 17,725,181 Shares no shares of Company Preferred Stock were issued and outstanding, (iic) the Company had no shares of the preferred stock were issued and outstanding, (iii) no Shares were Company Common Stock held by the Company in its treasury, (ivd) 1,345,594 Shares were reserved for issuance upon exercise no Company Options to purchase shares of Company Common Stock in the aggregate have been granted and remain outstanding Options granted under the Company Stock Option Plans ("Company Option Plans"), (e) no Company Warrants to purchase shares of Company Common Stock were outstanding, and (vf) 200,000 except for the Company Options and Company Warrants, there were no outstanding Rights (defined below). Except as permitted by Section 5.1(b) and except as provided by the last sentence of this Section 3.3 of this Agreement, since the Company Measurement Date, no additional shares of Series A participating preferred stock were reserved for issuance pursuant to in the Company have been issued and no Rights Agreementhave been granted. Except as described in the preceding sentence or as set forth in Section 3.3 of the Company Disclosure Letter sets forth a list Letter, the Company has: (1) no outstanding bonds, debentures, notes or other securities or obligations the holders of which have the right to vote or which are convertible into or exercisable for securities having the right to vote on any matter on which any shareholder of the Company’s outstanding Options, including the exercise prices of Company has a right to vote; (2) all such Options. All issued and outstanding shares of capital stock Company Common Stock are duly authorized, validly issued, fully paid, non-assessable and free of preemptive rights; and (3) there are not, as of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessabledate hereof, and are not subject to any preemptive existing options, warrants, stock appreciation rights. All of the issued and outstanding shares of capital , stock issuance rights, calls, subscriptions, convertible securities or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment rights which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates obligate the Company or any of its Subsidiaries to issue, grantexchange, extend transfer or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of sell any shares of the capital stock of the Company or any of its Subsidiaries, other than rights to purchase shares under the Company Stock Option Plans and Company Warrants, or awards granted pursuant thereto (z) relates collectively, "Rights"). As of the date hereof, there are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, re-price, redeem or otherwise acquire any shares of the voting capital stock of the Company or any of its Subsidiaries. As of the date hereof, there are no outstanding contractual obligations of the Company to vote or to dispose of any shares of the capital stock of any of its Subsidiaries. Notwithstanding the representations and warranties made in this Section 3.3 of this Agreement, the Parties acknowledge that the Company has undertaken and has continued to undertake prior to the Effective Date, an exempt offering of its common stock to certain investors pursuant to claims of exemption under state and federal securities with the result that the Company has issued and has received subscriptions receivable for the issuance of additional shares of the Company's Common Stock.

Capitalization. (a) The authorized capital stock of the Company consists solely of (a) 180,000,000 Shares and (b) 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were 4,000,000 Company Common Shares, of which, as of January 3, 2018, 1,247,747 shares are issued and outstanding and (ii) 2,000,000 shares of Company Preferred Shares, of which, as of the date of this Agreement, 8,250 shares have been designated as “Senior Non-Cumulative Perpetual Preferred Stock, Series A”, zero (0) shares of which are issued and outstanding. As of January 3, (ii) 2018, no shares of the preferred stock were issued and outstanding, (iii) no Company Common Shares were held by the or Company in its treasury, (iv) 1,345,594 Preferred Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were issuance, except for 101,500 Company Common Shares reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including upon the exercise prices of all such Options. All issued and outstanding shares Company Options There are no Company Common Shares or Company Preferred Shares held by any Subsidiary of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rightsCompany. All of the outstanding Company Common Shares are, and all Company Common Shares reserved for issuance as noted above shall be, when issued in accordance with the respective terms thereof, duly authorized, validly issued, fully paid and non-assessable and have not been and shall not be, as applicable, issued in violation of, nor are they nor shall they be, as applicable, subject to, preemptive rights held by any Person. All shares of Company’s capital stock issued and outstanding shares have been issued in compliance with, and not in violation of, any applicable federal or state securities Laws. The Closing Date Share Certification will accurately set forth the number of capital stock or other equity interests of each Company Common Shares (including Company Common Shares underlying Company Options) and Company Preferred Shares issued and outstanding immediately prior to the Effective Time. Company Party Disclosure Schedule 3.03(a) sets forth a complete and accurate list, as of the Subsidiaries date of this Agreement, of (i) the number of Company Common Shares issued under the Company Equity Plan, the number of Company Common Shares subject to outstanding Company Options and the number of Company Common Shares reserved for future issuance for Company Options and (ii) all outstanding Company Options, indicating, with respect to each such award, the name of the holder thereof, the number of Company Common Shares subject to such award and, to the extent applicable, the exercise price, expiration date, the date of grant and the vesting schedule. Company has provided to Buyer complete and accurate copies of the Company are owned directly or indirectly by Equity Plans and the Company. Except as set forth in this Section 3.3, at the close forms of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Companyall award agreements related thereto.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 is 10,000,000 shares of preferred stockCommon Stock, $.01 par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued Except as contemplated by this Agreement and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3the Proxy Statement, at the close of business on the Capital Structure Datethere are (i) no outstanding subscriptions, no shares of capital stock warrants, options, conversion privileges or other equity securities of the Company were issued, reserved for issuance rights or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, agreements obligating the Company or any security convertible Neonode AB to purchase or exercisable for otherwise acquire or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of issue any shares of capital stock of the Company or Neonode AB (zor shares reserved for such purpose), (ii) relates no preemptive rights contained in the Company’s Certificate of Incorporation, as amended (the “Certificate of Incorporation”), By-Laws of the Company or contracts to which the Company is a party (other than preemptive rights under the Bridge Notes, which have been waived) or rights of first refusal with respect to the voting issuance of any additional shares of capital stock of the Company, and (iii) no commitments or understandings (oral or written) of the Company or Neonode AB to issue any shares, warrants, options or other rights. Except as disclosed in the Proxy Statement, (x) all the issued and outstanding shares of the Subsidiary’s capital stock have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with applicable federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities, (y) except as disclosed in the Proxy Statement or this Agreement, there are no outstanding options to purchase, or any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of the Subsidiary’s capital stock or any such options, rights, convertible securities or obligations, and (z) the Company owns 100% of the outstanding equity of each Subsidiary. The Proxy Statement sets forth accurately and completely the capitalization of the Company as of the date hereof and the anticipated capitalization of SBE after giving effect to the Merger, but without giving effect to the Notes.

Capitalization. (a) The authorized capital stock of the Company consists of (ai) 180,000,000 Shares and (b) 20,000,000 one billion four hundred million shares of preferred stockCommon Stock, par value $0.01 0.00001 per share. At the close As of business on December 23January 21, 2005 (the “Capital Structure Date”) 2005, (i) 17,725,181 Shares were 26,858,483 shares of Common Stock are issued and outstanding, all of which are validly issued, fully paid and non-assessable, (ii) no shares of Common Stock are held in the preferred stock were issued and outstandingtreasury of the Company, (iii) no Shares were shares of Common Stock are held by the Company in its treasurySubsidiaries, and (iv) 1,345,594 Shares were 3,883,820 shares of Common Stock are reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for future issuance pursuant to outstanding employee stock options or stock incentive rights granted pursuant to the Rights Company's 2003 Employee Option Plan and our 2005 Option Plan, (collectively, the "Plans"). As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Section 3.3 There are warrants outstanding pursuant to several private placements and otherwise. All shares of Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and non-assessable. There are no outstanding contractual obligations of the Company Disclosure Letter sets forth or any Subsidiary to repurchase, redeem or otherwise acquire any shares of Common Stock or any capital stock of any Subsidiary or to provide funds to, or make any investment (in the form of a list of loan, capital contribution or otherwise) in, any Subsidiary or any other person, except pursuant to the Company’s Plans and outstanding Options, including the exercise prices of all such OptionsWarrant Certificates. All issued outstanding shares of Common Stock, all outstanding stock options to purchase Common Stock, and all outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities subsidiary of the Company have been issued or reserved for issuance or become outstandingand granted in compliance with (i) all applicable U.S. securities laws, (ii) all applicable non-U.S. securities laws, (iii) all other than Shares described in clause applicable Laws (as defined below) and (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described all requirements set forth in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Companyapplicable contracts.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 15,000,000 shares of preferred common stock, par value $0.01 .01 per share. At As of the close date of business this Agreement, after the consummation of the Investment Management Acquisition, there are 3,350,183 shares of Company common stock issued and outstanding. All of such outstanding shares of the Company's common stock are duly authorized, validly issued, fully paid and nonassessable, with no personal liability attaching to the ownership thereof, and have not been issued in violation of any pre-emptive rights. Except for the Convertible Note being issued as of the date hereof, and except as disclosed on December 23SCHEDULE 3.3 hereto, 2005 (there are no outstanding securities of the “Capital Structure Date”) (i) 17,725,181 Shares were Company convertible into or evidencing the right to purchase or subscribe for any shares of stock of the Company. Except for the Convertible Note Agreement and the Option Agreement between the Company and Investor, each dated as of the date hereof, and except as disclosed on SCHEDULE 3.3 hereto, there are no outstanding or authorized options, warrants, calls, subscriptions, rights, commitments or any other agreements of any character obligating the Company to issue any shares of its stock or any securities convertible into or evidencing the right to purchase or subscribe for any shares of such stock, and there are no agreements or understandings with respect to the voting, sale or transfer of any shares of stock of the Company to which the Company is a party. All of the Class A Shares, and any portion thereof, when issued, delivered and sold as contemplated by this Agreement, will be duly and validly authorized, issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are will not have been issued in violation of or be subject to any preemptive pre-emptive rights, except such rights as have been waived. All of the issued The Company had an authorized and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except capitalization at December 31, 2000 as set forth in this Section 3.3the financial statements and notes thereto included in the Form 10-KSB for the fiscal year ending December 31, 2000 (the "Year 2000 Annual Report") and, at September 30, 2001, as set forth in the close of business on financial statements and notes thereto included in the Capital Structure DateForm 10-QSB for the period ended September 30, no 2001 (the "3rd Quarter Periodic Report"), and such capitalization has not changed since the 3rd Quarter Periodic Report. The shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital common stock of the Company or (z) relates conform to the voting descriptions thereof contained in the Year 2000 Annual Report. With respect to subsequent issuances of any shares Convertible Class A Preferred Stock or Common Shares issuable upon exercise of capital stock the Option, this representation shall relate to the most recent annual and quarterly periodic report of the Company, as applicable, under the Securities Exchange Act of 1934, as amended.

Capitalization. The As of the date hereof, the authorized capital stock of the Company consists of (ai) 180,000,000 Shares 100,000,000 shares of Common Stock, of which, 42,685,852 are issued and outstanding and 915,450 shares are reserved for issuance pursuant to Convertible Securities (as defined below) (other than the Notes and the Warrants) and (bii) 20,000,000 5,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were which none are issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series . A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 complete capitalization table of the Company Disclosure Letter sets forth a list as of the Company’s date hereof is attached hereto as Schedule 5.2 (including, without limitation, all outstanding Options, including the exercise prices Convertible Securities). No shares of all such OptionsCommon Stock are held in treasury. All issued and of such outstanding shares of capital stock of the Company and each of its Subsidiaries have been are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All 17,358,920 shares of the Company's issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are 'affiliates' (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company's issued and outstanding Common Stock are 'affiliates' without conceding that any such Persons are 'affiliates' for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company's Knowledge, except as disclosed in the Public Reports, no Person owns 10% or more of the Company's issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including 'blockers') contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws), (i) None of the Company's or any Subsidiary's capital stock is subject to preemptive rights or any other equity interests of each of the Subsidiaries of the Company are owned directly similar rights or indirectly any Encumbrances suffered or permitted by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security Subsidiary; (ii) except as disclosed in Schedule Schedule 5.2 (ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable for or exchangeable into for, any capital stock ofof the Company or any of its Subsidiaries, or other equity interest incontracts, the Companycommitments, (x) obligates understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of issue additional capital stock of the Company or (z) relates any of its Subsidiaries or options, warrants, scrip, rights to the voting subscribe to, calls or commitments of any shares of character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company.Company or any of its Subsidiaries; (iii) other than as set forth on Schedule 5.2(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) except as set forth on Schedule 5.2(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 100,000,000 shares of preferred stockCommon Stock, par value $0.01 .33 1/3 per share, and 4,000,000 shares of Preferred Stock, par value $1.00 per share. At the close As of business on December 2315, 2005 (the “Capital Structure Date”) 1999, there were (i) 17,725,181 Shares were no shares of Preferred Stock issued and outstanding, (ii) no 33,324,721 shares of the preferred stock were Common Stock issued and outstanding, outstanding and (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 Common Stock of the Company held in the treasury of the Company. Section 3.2 of the letter delivered to MergerCo concurrently herewith (the "Disclosure Letter Letter") sets forth a list complete and accurate schedule as of the Company’s outstanding Options, including the exercise prices date hereof of all outstanding options to purchase Common Stock, identifying the holder of each such Optionsoption and the applicable exercise price. All issued and outstanding Since December 15, 1999, no additional shares of capital stock have been issued by the Company (except such shares of Common Stock, if any, that have been issued pursuant to the exercise of stock options so identified in Section 3.2 of the Company and each of its Subsidiaries Disclosure Letter) and, no additional stock options or other stock rights have been duly authorized and validly issued and granted. No stock appreciation rights have been granted or are fully paid and nonassessable, and are not subject to any preemptive rightsoutstanding. All of the issued and outstanding shares of capital stock Common Stock have been duly authorized and are validly issued, fully paid, nonassessable and were not issued in violation of any preemptive rights or other equity interests rights of each of the Subsidiaries of the Company are owned directly or indirectly by the Companyany person to acquire such shares. Except as set forth disclosed in this Section 3.33.2 or in Section 3.2 of the Disclosure Letter, at as of the close date hereof, (A) there are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of business on any kind to which the Capital Structure DateCompany 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, no sell, redeem or otherwise acquire or vote any shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares any of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause its subsidiaries and (ivB) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not a party to or bound by (x) any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment pursuant to which (w) obligates the Company is or could be required to issue, deliver, sell register any securities under the Securities Act or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock debt agreements or instruments which grant any rights to vote (contingent or otherwise) on matters on which shareholders of the Company or (z) relates to the voting of any shares of capital stock of the Companymay vote.

Capitalization. The authorized capital stock of the Company AmbiCom consists of (a) 180,000,000 Shares and (b) 75,000,000 shares of capital stock. As of the date of this Agreement, 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares AmbiCom Common Stock were issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 7,050,000 shares of Series A participating preferred stock Preferred Stock were reserved for issuance pursuant outstanding, rights to the Rights Agreement. Section 3.3 issuance of the Company Disclosure Letter sets forth a list 2,600,000 shares of the Company’s outstanding OptionsSeries B Preferred Stock were outstanding, including warrants to purchase 500,000 shares of AmbiCom Common Stock at the exercise prices price of all such Options. All $0.50, were issued and outstanding and options to purchase 5,500,000 shares of capital stock Common Stock and 2,350,000 shares of Series A Preferred Stock at the Company and each purchase price of its Subsidiaries have been duly authorized and validly $0.01 per share were issued and are fully paid outstanding and nonassessableno shares of AmbiCom Common Stock, and are not subject to any preemptive rightsSeries A Preferred Stock or Series B Preferred Stock were held in the treasury of AmbiCom. All of the issued and outstanding AmbiCom Shares are duly authorized, validly issued, fully paid, nonassessable and free of all preemptive rights. There are no notes or other indebtedness convertible into shares of capital stock or other equity interests of each any class of the Subsidiaries of AmbiCom’s capital stock, outstanding or authorized options, warrants, rights, agreements or commitments to which AmbiCom is a party or which are binding upon AmbiCom providing for the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close redemption of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries capital stock. There are no outstanding or authorized stock appreciation, phantom stock or similar rights with respect to issue, grant, extend AmbiCom. There are no agreements to which the AmbiCom is a party or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates by which it is bound with respect to the voting (including without limitation voting trusts or proxies), registration under the Securities Act, or sale or transfer (including without limitation agreements relating to pre-emptive rights, rights of first refusal, co-sale rights or “drag-along” rights) of any shares securities of capital stock AmbiCom. To the knowledge of AmbiCom, there are no agreements among other parties, to which AmbiCom is not a party and by which it is not bound, with respect to the voting (including without limitation voting trusts or proxies) or sale or transfer (including without limitation agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any securities of AmbiCom. All of the Companyissued and outstanding AmbiCom Shares were issued in compliance with applicable federal and state securities laws.

Capitalization. The authorized capital stock of the Company consists of twenty million (a20,000,000) 180,000,000 Shares and five hundred thousand (b500,000) 20,000,000 shares of preferred stock, $.01 par value $0.01 per share. At the close of business on December 23, 2005 share (the “Capital Structure Date”) "Preferred Shares"). As of December 11, 1997, (i) 17,725,181 5,673,602 Shares were are issued and outstanding, all of which are validly issued, fully paid and nonassessable, (ii) no shares 234,028 Shares are held in the treasury of the preferred stock were issued and outstandingCompany, (iii) no Shares 353,205 Company Options were held by outstanding pursuant the Company in its treasuryStock Option Plan, (iv) 1,345,594 each such option entitling the holder thereof to purchase one Share and 353,205 Shares were are authorized and reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for future issuance pursuant to the Rights Agreementexercise of such Company Options, and (iv) no Preferred Shares are issued and outstanding. Section 3.3 The Company has previously furnished to Parent a detailed schedule of outstanding Company Options and rights to participate in the Company Disclosure Letter sets forth a list of the Company’s outstanding OptionsShare Participation Plan, including the exercise prices prices, vesting schedules and existing provisions therefore. Except as set forth above, there are no options, warrants, convertible securities, subscriptions, stock appreciation rights, phantom stock plans or stock equivalents or other rights, agreements, arrangements or commitments (contingent or otherwise) of all such Options. All any character issued and outstanding shares of or authorized by the Company relating to the issued or unissued capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transferof, or repurchaseoptions, redeem or otherwise acquirewarrants, or cause to be issued deliveredconvertible securities, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, subscriptions or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock ofSubsidiary. All Shares subject to issuance as aforesaid, or other equity interest inupon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, the Companywill be duly authorized, (x) obligates validly issued, fully paid and nonassessable. There are no outstanding contractual obligations of the Company or any of its Subsidiaries Subsidiary to issuerepurchase, grant, extend redeem or enter into otherwise acquire any such option, warrant, call, right, security, commitment, contract, arrangement Shares or undertaking, (y) restricts the transfer any capital stock of any shares Subsidiary or to pay any dividend or make any other distribution in respect thereof or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any person. Each outstanding share of capital stock of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable and each such share owned by the Company or (z) relates to another Subsidiary is free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company's or such other Subsidiary's voting rights, charges and other encumbrances of any shares of capital stock of the Companynature whatsoever.

Capitalization. (a) The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 150,000,000 shares of preferred stockCompany Common Stock; and 5,000,000 shares of Company Preferred Stock. As of the date of this Agreement, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were 65,788,780 shares of Company Common Stock are issued and outstanding, all of which are duly authorized, validly issued, fully paid and nonassessable, (ii) no 10,865,257 shares of Company Common Stock are reserved for issuance upon the preferred stock were issued and outstandingexercise of outstanding Company Options, (iii) no Shares were held by the 400,000 shares of Company in its treasury, (iv) 1,345,594 Shares were Common Stock are reserved for issuance upon exercise of the outstanding Options granted under Warrants, (iv) no shares of Company Common Stock are held in the Stock Plans treasury of the Company and (v) 200,000 2,884,083 shares of Series A participating preferred stock were Company Common Stock are reserved for issuance pursuant to Company Options not yet granted. As of the Rights date of this Agreement, no shares of Company Preferred Stock are outstanding. Section 3.3 There are no bonds, debentures, notes or other indebtedness or securities of the Company Disclosure Letter sets forth a list of that have the Company’s outstanding Optionsright to vote (or that are convertible into, including or exchangeable for, securities having the exercise prices of all such Options. All issued and outstanding shares of capital stock right to vote) on any matters on which stockholders of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Companymay vote. Except as set forth in above, as of the date of this Section 3.3, at the close of business on the Capital Structure DateAgreement, no shares of capital stock or other equity voting securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company are issued, reserved for issuance or any security convertible or exercisable for or exchangeable into any outstanding and no shares of capital stock or other voting securities of, or other equity interest interests in, the CompanyCompany shall be issued or become outstanding after the date of this Agreement other than upon exercise of Company Options and Warrants outstanding as of the date of this Agreement. Section 2.2(a) of the Company Disclosure Schedule sets forth a complete and correct list, (x) obligates as of the date of this Agreement, of all Rights that exist with respect to the Company or any of its Subsidiaries Subsidiaries, including Company Options and Warrants. Such list sets forth (x) the name of each holder and the number of shares of Company Common Stock subject to issue, grant, extend or enter into any each such option, warrantthe date of grant, call, right, security, commitment, contract, arrangement or undertaking, the exercise price per share and the term of each such option and (y) restricts the transfer name of any each holder of each such Warrant, the number of shares each such Warrant entitles the holder to purchase, the date of capital stock issuance and the exercise price of such Warrant and the expiration date of such Warrant. On the Closing Date, the Company shall deliver to Parent an updated Section 2.2(a) of the Company or (z) relates to Disclosure Schedule hereto current as of such date. As of the voting date of this Agreement, the Company has not issued any additional shares of its capital stock or Company Options in respect thereof, except for shares of Company Common Stock issued upon the exercise of the CompanyCompany Options and Warrants referred to above. All shares of Company Common Stock subject to issuance as described above shall, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, be duly authorized, validly issued, fully paid and nonassessable.

Capitalization. (i) The authorized share capital of the Company shall be as set forth in Schedule I, setting forth, the capitalization table of the Company as of the date hereof and as of the Closing Date (other than (x) the Ordinary Shares that will be registered by the Registration Statement (as defined below) and be issued by the Company in the Offering, (y) Purchased Shares, and (z) shares of capital stock of the Company consists of (aA) 180,000,000 Shares that will be issued to persons other than a Purchaser Adverse Person (as defined below) and (bB) 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by which the Company has notified the Purchaser in its treasurywriting) respectively, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant including without limitations to the Rights Agreement. Section 3.3 number of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company (including the ordinary shares and each series of its Subsidiaries have been duly preferred shares (the “Preferred Shares”)) held by each shareholder of the Company. Other than the share capital set forth in Schedule I, there are no authorized or outstanding equity interest in the Company, options, equity incentive plans, warrants and validly other rights to acquire equity interests in the Company or stock appreciation, phantom stock, profit participation or similar rights with respect to the Company. All issued and outstanding ordinary shares and all issued and outstanding Preferred Shares are validly issued, fully paid and nonassessablenon-assessable. Other than the eleventh amended and restated shareholders agreement among the Company and its shareholders dated as of June 3, 2016, as amended on July 17, 2018 and are not subject to any preemptive rights. All the thirteenth amended and restated articles of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries association of the Company are owned directly or indirectly by the Company. Except as set forth adopted on July 17, 2018 (in this Section 3.3each case, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Sectiondisregarding any amendment thereof, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right“Shareholders Agreement and the Existing Articles”), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares there are no outstanding obligations of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grantrepurchase, extend redeem or enter into otherwise acquire any such option, warrant, call, right, security, commitment, contract, arrangement share capital or undertaking, (y) restricts the transfer of any shares of capital stock of equity interests in the Company or (z) relates any of its Subsidiaries, and neither the Company nor any of its Subsidiaries is a party to any voting agreement with respect to the voting of any shares share capital, equity interests or other voting securities in the Company or any of capital stock of the Company.its Subsidiaries. “

Capitalization. The authorized capital stock of the Company consists solely of (a) 180,000,000 Shares and (b) 20,000,000 1,000 shares of preferred voting common stock, $1.00 par value $0.01 per share. At the close value, of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were which 1,000 shares are issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of Company Stock have been duly authorized and validly issued, are fully paid and nonassessable, were offered, issued, sold and delivered by Company in compliance with all state and federal laws concerning the issuance of securities and none of such shares were issued pursuant to awards, grants or bonuses nor in violation of the preemptive rights of any past or present stockholder. The stock transfer records provided by Stockholders and Company to Buyer correctly set forth all issuances, acquisitions and retirements of Company Stock since the inception of Company. Company has never acquired any treasury stock, except for 175 shares acquired from Xxxxxxx Xxxxxxxx in September 1996 which were subsequently reissued. No subscriptions, options, warrants, puts, calls, conversion rights or other commitments of any kind exist which obligate Company to issue any of its authorized but unissued capital stock or other equity interests otherwise relate to the sale or transfer by Company of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity any securities of the Company were issued(whether debt or equity). In addition, reserved for issuance Company has no obligation (contingent or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (ivotherwise) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchasepurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or acquire any of its Subsidiaries equity securities or any interests therein or to issuepay any dividend or make any distribution in respect thereof. Company has not agreed to register any securities under the Securities Act of 1933, grantas amended (the "Act"), extend or enter into under any state securities law. There has been no transaction or action taken with respect to the equity ownership of Company in contemplation of the transaction described in this Agreement which would prevent Parent from accounting for such option, warrant, call, right, security, commitment, contract, arrangement transaction on a "pooling-of-interest" or undertaking, (y) restricts on a reorganization accounting basis. Neither the transfer voting stock structure of any Company nor the ownership of shares of capital stock Company has been altered or changed in contemplation of the Merger. Between June 30, 1995 and the Closing Date, there has not been any sale or spin-off of significant assets of Company or (z) relates to other than in the voting ordinary course of any shares of capital stock of the Companybusiness.

Capitalization. The (a) Immediately prior to the consummation of the transactions contemplated hereunder, the authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 1,400 shares of preferred stockCommon Stock, no par value $0.01 per share. At the close of business on December 23, 2005 share (the “Capital Structure DateStock”) of which 1,228.49 shares of Stock are issued and outstanding (which such amounts include the shares issuable upon exercise of the Company Stock Options on the Closing Date). The beneficial and record ownership of all of the outstanding shares of Stock is set forth on Schedule 3.4(a) attached hereto. All outstanding shares of Stock (i) 17,725,181 Shares were issued are duly authorized, validly issued, fully paid and outstanding, nonassessable (ii) no shares were not issued in violation of the preferred stock were issued any pre-emptive rights or federal or state securities laws and outstanding, (iii) no Shares were held are not subject to preemptive rights created by statute, the Certificate of Incorporation or By-Laws of the Company in its treasuryor any agreement or document to which the Company is a party or by which it is bound. As of the date of this Agreement and after giving effect to the exercise any such Company Stock Options on or before the Closing, fifty (iv50) 1,345,594 Shares shares of Company Common Stock were reserved for issuance upon the exercise of outstanding Options options to purchase Company Common Stock granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s 2004 Stock Incentive Plan (the “Company Option Plan”) under which options are outstanding Options, including the exercise prices for an aggregate of all such Optionszero (o) shares and under which thirty-two (32) shares are available for grant. All issued and outstanding shares of capital stock of Company Common Stock subject to issuance as aforesaid, upon issuance on the Company terms and each of its Subsidiaries have been conditions specified in the instruments pursuant to which they are issuable, would be duly authorized and authorized, validly issued and are issued, fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in above, as of the date of this Section 3.3, at the close of business on the Capital Structure Date, Agreement no shares of capital stock Stock, other equity securities, partnership interests or similar ownership interests or other equity voting securities of the Company or any securities exchangeable or convertible into or exercisable for such capital stock, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company, were issued, reserved for issuance or outstanding. Since There are no outstanding stock appreciation rights with respect to shares of Stock. There are no bonds, debentures, notes or other indebtedness of the close Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of business on the Capital Structure DateCompany may vote. Except as set forth above, there are no securities, partnership interests or similar ownership interests, options, warrants, calls, rights (including preemptive rights) or commitments, understandings, arrangements, agreements or contracts (either written or oral) of any kind to which the Company is a party, or by which the Company is bound, obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, any shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates obligating the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend extend, accelerate the vesting of or enter into any such security, partnership interest or similar ownership interest, option, warrant, call, right, security, commitment, contractunderstanding, arrangement arrangement, agreement or undertakingcontract (either written or oral). The Company has never repurchased, (y) restricts redeemed or otherwise acquired or caused the transfer repurchase, redemption or acquisition of any shares of capital stock or other securities of the Company, and there are no amounts owed or which may be owed to any person by the Company as a result of any repurchase, redemption or (z) relates to the voting acquisition of any shares of capital stock Stock or other securities of the Company. There is no claim or basis for such a claim to any portion of the Merger Consideration except as provided in Section 2.2 or Schedule 2.2 hereto by any current or former shareholder, option holder or warrant holder of the Company, or any other person. There are no registration rights and there are no voting trusts, proxies or agreements or understandings with respect to any equity security of any class of securities of the Company. All outstanding options to purchase Company Common Stock were issued pursuant to the Company Option Plan. Schedule 3.4 hereto sets forth a true and complete list of the holders of outstanding Company Stock Options and lists for each outstanding Company Stock Option, as of the date of this Agreement, (i) the number of shares of Company Common Stock subject to such outstanding Company Stock Option, (ii) the exercise price of such option, (iii) the number of shares as to which such option will have vested, (iv) the vesting schedule for such option and whether the exercisability of such option will be accelerated in any way by the transactions contemplated by this Agreement or for any other reason, and (v) indicates the extent of acceleration, if any.

Capitalization. (a) The authorized capital stock of the Company consists of (a) 180,000,000 300,000,000 Shares and (b) 20,000,000 10,000,000 shares of preferred stockPreferred Stock, par value $0.01 per shareshare (the “Preferred Stock”). At As of the close of business on December 238, 2005 (the “Capital Structure Date”) (i) 17,725,181 2003: 97,038,492 Shares were issued and outstanding, (ii) no shares of the preferred stock Preferred Stock were issued and outstanding, (iii) no outstanding and 10,987,984 Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s treasury. In addition, as of such date, there were outstanding OptionsExisting Stock Options to purchase an aggregate of 11,544,510 Shares. Since such date, including the Company has not issued any Shares other than upon the exercise prices of all Existing Stock Options outstanding on such Options. All issued date, has not granted any options, warrants or rights or entered into any other agreements or commitments to issue any Shares and outstanding has not split, combined or reclassified any of its shares of capital stock stock. All of the Company and each of its Subsidiaries outstanding Shares have been duly authorized and validly issued and are fully paid and nonassessable, nonassessable and are not subject to any free of preemptive rights. All Section 3.02(a) of the issued Company Disclosure Schedule contains a true, accurate and complete list, as of December 8, 2003, of the name of each Existing Stock Option or Stock Unit holder, the number of outstanding Existing Stock Options or Stock Units held by such holder, the grant date of each such Existing Stock Option, the number of Shares such holder is entitled to receive upon the exercise of each Existing Stock Option and the corresponding exercise price. Except for the Existing Stock Options and the Stock Units and for the Company’s obligations under the Rights Agreement, dated as of August 15, 1996 (the “Rights Agreement”), between the Company and Wxxxx Fargo Bank of Arizona, N.A., as rights agent, and under the Company’s Employee Stock Purchase Plan, and except for the transactions contemplated by this Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock or other equity voting securities or ownership interests of each of the Subsidiaries of the Company are owned directly or indirectly by in the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date(ii) options, no shares of capital stock warrants, rights or other equity securities agreements or commitments to acquire from the Company, or obligations of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliverany capital stock, sell voting securities or transfer, other ownership interests in (or repurchase, redeem securities convertible into or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the exchangeable for capital stock of, or voting securities or other equity ownership interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, ) the Company, (xiii) obligates obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (iv) obligations by the Company or any of its Subsidiaries to issuemake any payments based on the price or value of the Shares. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, grant, extend redeem or enter into otherwise acquire any such option, warrant, call, right, security, commitment, contract, arrangement Company Securities. There are no voting trusts or undertaking, (y) restricts other agreements or understandings to which the transfer Company or any of any shares its Subsidiaries is a party with respect to the voting of capital stock of the Company or (z) relates to the voting any of any shares of capital stock of the Companyits Subsidiaries.

Capitalization. (a) The Company Disclosure Schedules set forth a complete and accurate list, as of the date hereof, of the authorized equity capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s record holders of all of the outstanding Units and Options, including the name of, and the corresponding amount, of Class A Units, Options and Class P Units held by each Equityholder, as of the date hereof, and if applicable, the exercise prices price, number of all Class A Units issuable upon exercise thereof and the vesting dates (and amount subject to such Optionsdates). All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries Units are duly authorized, have been duly authorized and validly issued and issued, are fully paid and nonassessablenon-assessable, and are not subject to and have not been issued in violation of any preemptive rightsor similar rights and have been issued in compliance with applicable securities Laws or exemptions therefrom. All Each of the Equityholders has good, valid and marketable title to the Units or Options set forth opposite such Equityholder’s name on the Company Disclosure Schedules, free and clear of all Liens. Except for the Class A Units, Class P Units and Options outstanding on the date hereof, as of the date hereof there are no issued and outstanding shares of capital stock voting or other equity interests of each of in the Subsidiaries of Company, and the Company are owned directly does not have on the date hereof any outstanding securities convertible into or indirectly by exchangeable or exercisable for any equity interests in the Company or any rights to subscribe for or to purchase, or any agreements (other than this Agreement, the Operating Agreement, the Registration Rights Agreement and the Company’s Unit Incentive Plan and related Unit Option Agreements) providing for the issuance, transfer, sale, purchase or redemption (contingent or otherwise) of, any equity interests in the Company. Except as The statements set forth in this Section 3.33.3(a) will be equally true as of the Closing, at except to reflect (i) any issuances of Units upon any exercise of the close of business Options outstanding on the Capital Structure Date, no shares date hereof (which will reduce the number of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of Units subject to such outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive rightby a corresponding amount), agreement or commitment which (wii) obligates any forfeitures of Options since the Company to issuedate hereof, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, and (iii) any shares grants of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the CompanyOptions made in compliance with Section 5.1(a)(ii).

Capitalization. The (a) As of the date hereof, the authorized capital stock of the Company consists of two hundred million (a200,000,000) 180,000,000 Shares and (b) 20,000,000 shares of preferred stock, par value $0.01 per shareCommon Shares. At the close of business on December 23May 20, 2005 (the “Capital Structure Date”) 2015, (i) 17,725,181 138,842,945 Common Shares were issued and 96,885,085 Common Shares were outstanding, (ii) no shares of 41,957,860 Common Shares were held in treasury by the preferred stock were issued Company and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 1,663,682 Common Shares were reserved for issuance upon exercise in respect of outstanding Options granted under the grants of Options, Performance Restricted Stock Plans Units and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance Restricted Stock Rights pursuant to the Rights Agreement. Company’s stock plans listed on Section 3.3 5.3(a) of the Company Disclosure Letter sets Letter. Except as set forth a list above, at the close of the Company’s outstanding Optionsbusiness on May 20, including the exercise prices of all such Options2015, no Common Shares were issued, reserved for issuance or outstanding. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries Common Shares have been duly authorized and validly issued and are fully paid and nonassessable, and non-assessable. (b) There are not subject to no preemptive or similar rights granted by the Company or any preemptive rights. All Company Subsidiary on the part of the issued and outstanding shares any holders of capital stock or other equity interests any class of each of the Subsidiaries securities of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or which are owned directly convertible into or indirectly by exercisable for securities having the Companyright to vote) with the stockholders of the Company or any such Company Subsidiary on any matter (“Voting Company Debt”). Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities 5.3(b) of the Company were issuedDisclosure Letter, reserved for issuance there are not, as of the date hereof, any options, warrants, rights, convertible or outstanding. Since exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, contracts, arrangements or undertakings of any kind to which the close of business on the Capital Structure Date, no shares of capital stock Company or other equity securities any of the Company have been issued Subsidiaries is a party or reserved for issuance by which any of them is bound (i) obligating the Company or become outstanding, other than Shares described in clause (iv) any of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company Subsidiaries to issue, deliver, deliver or sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued deliveredissued, sold delivered or transferredsold, or repurchased, redeemed or otherwise acquired, any additional shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, Company or any Voting Company Debt or (xii) obligates obligating the Company or any of its Subsidiaries Company Subsidiary to issue, grant, extend or enter into any such option, warrant, call, right, security, unit, commitment, contract, arrangement or undertaking. As of the date hereof, (y) restricts there are not any outstanding contractual obligations of the transfer Company or any of the Company Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or (z) relates any of the Company Subsidiaries. There are no proxies, voting trusts or other agreements or understandings to which the Company or any of the Company Subsidiaries is a party or is bound with respect to the voting of any shares of the capital stock of, or other equity interests in, the Company or any of the Company.Company Subsidiaries. 20 Section 5.4

Capitalization. The authorized share capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 $1,000,000 divided into 100,000,000 shares of preferred stockCompany Common Share Capital and, par value $0.01 per share. At the close as of business on December 23, 2005 (the “Capital Structure Date”) July 21,2005: (i) 17,725,181 Shares 39,084,613 shares of the Company Common Share Capital were issued outstanding, all of which were validly issued, fully paid and outstandingnonassessable, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares Company Common Share Capital were held by the Company in its treasuryor any Company Subsidiary, (iviii) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 3,821,141 shares of Series A participating preferred stock the Company Common Share Capital were reserved for issuance pursuant to the Rights Agreement. Section 3.3 Company Stock Plans, copies of which have heretofore been furnished to Parent, (iv) options to purchase 3,225,978 shares of the Company Disclosure Letter sets forth a list of Common Share Capital were outstanding under the Company’s outstanding Company Stock Plans (collectively, the “Options, including the exercise prices of all such Options. All issued ”) and outstanding (v) warrants to purchase 219,942 shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessableCommon Share Capital were outstanding (collectively, and are not subject to any preemptive rights. All the “Warrants”).As of the date of this Agreement and as of the Effective Time, the Company Stock Plans are and will be the only Company stock option or other equity incentive plans in effect and the Options are and will be the only stock options issued under the Company Stock Plans. The Company has previously made available to Parent complete and outstanding correct copies of each Company Stock Plan and the agreement for each Option and Warrant, including, in each case, all amendments thereto. Since December 31, 2004, no shares of capital stock or other voting securities or equity interests of each the Company have been issued or reserved for issuance, except in connection with the exercise, exchange or conversion of the Subsidiaries outstanding Options or Warrants. Section 4.03 of the Company are owned directly or indirectly by Disclosure Schedule sets forth a true and complete listing of all outstanding Options and Warrants, setting forth the Companynames of the holders of such Options and Warrants, the number of Options and Warrants so held and the exercise prices and vesting schedules of such Options and Warrants (as applicable). Except as set forth in this Section 3.34.03, there are not now, and at the close of business on the Capital Structure DateEffective Time there will not be, no any shares of the Company Common Share Capital or other equity securities of the Company or any Company Subsidiary issued or outstanding or any options, warrants, rights or exchange, conversion or other rights with respect to any equity securities of the Company or any Company Subsidiary or obligating the Company or any Company Subsidiary to grant, extend or enter into any such agreement or commitment. There is no commitment of the Company or any Company Subsidiary to distribute to holders of any class of its capital stock, any dividends, distributions, evidences of indebtedness or assets, or agreements, arrangements or commitments obligating the Company or any Company Subsidiary to issue or sell any share capital of the Company or any share capital, capital stock or other like equity interest in any Company Subsidiary. Except as set forth in Section 4.03 of the Company Disclosure Schedule, there are no outstanding contracts of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any share capital, capital stock or other equity securities of the Company were issuedor any Company Subsidiary. Except as set forth in Section 4.03. of the Company Disclosure Schedule, reserved for issuance there are no outstanding contracts of the Company or outstanding. Since the close of business on the Capital Structure Dateany Company Subsidiary to repurchase, no shares of redeem or otherwise acquire any share capital, capital stock or other equity securities of the Company or any Company Subsidiary. The Company has obtained all consents and made all amendments, if any, to the terms of the Company Stock Plans, each Warrant and each Option agreement, as applicable, that are necessary to give effect to the provisions of Sections 3.01 (d) and (e). All outstanding shares of Company Common Share Capital are duly authorized, validly issued, fully paid and nonassessable and have been issued in accordance with applicable Securities Laws and none of such shares were issued in violation of any pre-emptive rights, rights of first offer or reserved for issuance first refusal or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that similar rights. All Options and Warrants have been duly authorized and have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Companyaccordance with applicable Securities Laws.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (bSection 3.03(a) 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) no shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a true and correct list as of the date hereof of (i) the name and jurisdiction of organization of each Group Company in existence on the date hereof, (ii) to the extent such concept is recognized in the applicable jurisdiction, the authorized Equity Interests (or registered capital) of each such Group Company’s outstanding Options, including (iii) if applicable, the exercise prices number and type of all such Options. All issued and outstanding shares Equity Interests of each such Group Company (or registered capital stock of each such Group Company), and (iv) the record and beneficial owners of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rightsoutstanding Equity Interests (or registered capital) of each such Group Company. All of the issued and outstanding shares of capital stock or other equity interests Equity Interests of each of Group Company currently in existence (other than those Equity Interests not indirectly owned by the Subsidiaries Company) (A) have been duly authorized and validly issued, (B) are fully paid and non-assessable, (C) are held by the Persons and in the amounts set forth in Section 3.03(a) of the Company are Disclosure Letter, free and clear of any Liens (other than Liens arising under applicable securities Laws or the Organizational Documents of such Group Company in effect as of the date hereof) and (D) upon the completion of the Restructuring will be held of record by the Sellers in the amounts set forth in Section 3.03(a) of the Company Disclosure Letter, free and clear of any Liens (other than Liens arising under applicable securities Laws or the Organizational Documents of such Group Company in effect as of the date hereof). All of the issued and outstanding Equity Interests of each Group Company, whether or not currently in existence (other than those Equity Interests not indirectly owned directly or indirectly by the Company), will, at the Closing, be (A) duly authorized and validly issued, (B) fully paid and non-assessable and (C) held of record by the Sellers in the amounts set forth in Section 3.03(a) of the Company Disclosure Letter, free and clear of any Liens (other than Liens arising under applicable securities Laws or the Organizational Documents of such Group Company in effect as of the date hereof). No Group Company has violated any applicable securities Laws in connection with the offer, sale or issuance of any of their Equity Interests, except as would not, individually or in the aggregate, be material to the Business, taken as a whole. Except as set forth in this on Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities 3.03(a) of the Company were Disclosure Letter, there are no other Equity Interests of any Group Company authorized, issued, held in treasury, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, outstanding and no shares of capital stock or other equity securities Group Company owns of the Equity Interests of any Person. Each Group Company have been issued or reserved for issuance or become outstandingand Transferred JV Company that is not wholly-owned by another Group Company is set forth as a Non-Wholly Owned Group Company on Schedule 1 attached hereto, other than Shares described in clause (iv) and the ownership percentage of the second sentence Group Company set forth opposite the name of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares each of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the CompanyNon-Wholly Owned Group Companies on Schedule 1 is true and correct.

Capitalization. (a) The authorized capital stock of the Company consists of (a) 180,000,000 Shares 250,000,000 shares of Common Stock and (b) 20,000,000 no shares of preferred stock. As of July 29, par value $0.01 per share. At the close of business on December 232005, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares 59,777,962 shares of Common Stock (not including 36,716,225 shares of Common Stock owned by RBK Holdings plc) were issued and outstanding, all of which were duly authorized, validly issued, fully paid and nonassessable and were issued free of preemptive rights, (ii) no 7,078,626 shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares Common Stock were reserved for issuance upon or otherwise deliverable in connection with the exercise or payment of outstanding Company Stock Options or Deferred Share Awards issued or granted under pursuant to the Company Stock Plans and Plans, (viii) 200,000 124,000,000 shares of Series A participating preferred stock Common Stock were reserved for issuance upon the exercise of the rights (the “Company Rights”) issued pursuant to the Company’s Common Stock Rights Agreement, dated June 14, 1990, between the Company and American Stock Transfer and Trust Company, as rights agent, as amended (the “Company Rights Agreement”), and (iv) no other shares of Common Stock are reserved for issuance by the Company. From July 29, 2005 through the date of this Agreement, the only shares of Common Stock issued have been pursuant to the Company Stock Options listed in Section 3.3 3.3(a)(i) of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such OptionsSchedule. All issued and outstanding shares of capital stock Section 3.3(a)(i) of the Company Disclosure Schedule sets forth, as of the date of this Agreement, all outstanding Company Stock Options, grouped by grant date and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessableexercise price, and are not subject to any preemptive rightsDeferred Share Awards, in the aggregate. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries Section 3.3(a)(ii) of the Company are owned directly or indirectly Disclosure Schedule sets forth the number of warrants issued by the CompanyCompany to National Football League Properties, Inc., the number of shares issuable or deliverable upon exercise thereof, the vesting schedule (if applicable), the expiration date and the exercise price relating thereto. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities 3.3(a)(i) and Section 3.3(a)(ii) of the Company were issuedDisclosure Schedule and except for the Company Rights and the Company’s 2.00% Convertible Debentures due May 1, reserved for issuance or outstanding. Since 2024, the close terms of business on which are governed by the Capital Structure DateIndenture, dated as of April 30, 2004, between the Company and U.S. Bank National Association, as trustee, and the Company’s Series B 2.00% Convertible Debentures due May 1, 2024, the terms of which are governed by the Indenture, dated as of November 29, 2004, between the Company and U.S. Bank National Association, as trustee (collectively, the “Convertible Debentures”), (A) there are no shares of capital stock outstanding options, warrants, calls, convertible securities, preemptive rights or other equity securities rights of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment kind which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company, (x) obligates obligate the Company or any of its Subsidiaries subsidiaries to issueissue or deliver, grantor giving any person a right to subscribe for or acquire from the Company or its subsidiaries, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock stock, voting securities or other equity or ownership interests of the Company or any securities or obligations convertible or exchangeable into or exercisable for any shares of capital stock, voting securities or other equity or ownership interests of the Company (z“Company Securities”), (B) relates there are no outstanding obligations of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any Company Securities and (C) there are no voting agreements, proxies, shareholder agreements or similar arrangements relating to the voting of any issued or unissued Company Securities to which the Company or any of its subsidiaries is a party. RBK Holdings plc owns 36,716,225 shares of capital stock Common Stock, and no other subsidiary of the CompanyCompany owns any Company Securities.

Capitalization. (a) The authorized capital stock of the Company consists of (ai) 180,000,000 Shares 55,000,000 shares of common stock, par value $0.01 per share (“Company Common Stock”) and (bii) 20,000,000 5,000,000 shares of preferred stock, par value $0.01 per shareshare (“Company Preferred Stock”). At the close As of business on December 23February 21, 2005 (the “Capital Structure Date”) 2007, (i) 17,725,181 15,271,126 Shares were are issued and outstanding, all of which are validly issued, fully paid and nonassessable, (ii) no shares of Shares are held in the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock treasury of the Company and each (iii) 1,205,652 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and other rights (together, the “Company Stock Awards”) granted pursuant to the Company Stock Plans. As of its Subsidiaries have been duly authorized and validly the date of this Agreement, no shares of Company Preferred Stock are issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Companyoutstanding. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock 3.3 or other equity securities in Section 3.3(a) of the Company were issuedDisclosure Schedule, reserved for issuance there are no options, warrants or outstanding. Since the close other rights, agreements, arrangements or commitments of business any character that are binding on the Capital Structure Date, no shares of Company or any Subsidiary and that relate to the issued or unissued capital stock or other equity securities of the Company have been issued or reserved for issuance any Subsidiary or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, obligate the Company is not party or any Subsidiary to any outstanding option, warrant, call, subscription issue or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any security convertible Subsidiary. Section 3.3(a) of the Company Disclosure Schedule sets forth the following information with respect to each Company Stock Award outstanding as of the date of this Agreement: (i) the name of the Company Stock Award recipient; (ii) the number of Shares subject to such Company Stock Award; (iii) the exercise or exercisable for purchase price of such Company Stock Award; (iv) the date on which such Company Stock Award was granted; (v) the date on which such Company Stock Award expires; and (vi) whether the exercisability of or exchangeable into right to repurchase of such Company Stock Award will be accelerated in any capital stock ofway by the Merger, or other equity interest inand indicates the extent of acceleration. All Shares subject to issuance as set forth in this Section 3.3, upon issuance on the Companyterms and conditions specified in the instruments pursuant to which they are issuable, (x) obligates will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual obligations of the Company or any of its Subsidiaries Subsidiary to issuerepurchase, grant, extend redeem or enter into otherwise acquire any such option, warrant, call, right, security, commitment, contract, arrangement Shares or undertaking, (y) restricts the transfer any capital stock of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as reflected in the Company Stock Plans or as set forth in Section 3.3(a) of the Company Disclosure Schedule, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Award as a result of the Merger. All outstanding Shares, all outstanding Company Stock Awards, and all outstanding shares of capital stock of the Company or each Subsidiary have been issued and granted in compliance in all material respects with (zi) relates to the voting of any shares of capital stock of the Companyall applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable Contracts.

Capitalization. (a) The authorized capital stock of the Company consists of (a) 180,000,000 Shares and (b) 20,000,000 4,500,000 shares of preferred stockCompany Common Stock. As of the date hereof, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) there are (i) 17,725,181 Shares were issued 3,650,585 shares of Company Common Stock outstanding and outstanding, (ii) no 674,715 shares of Company Common Stock issuable upon the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Company Options granted under (whether or not presently exercisable), of which 410,324 are fully vested and exercisable and 264,391 are not fully vested nor exercisable. A true, complete and correct list as of the Stock Plans and (v) 200,000 date hereof of the holders of all shares of Series A participating preferred stock were reserved for issuance pursuant to Company Common Stock and Company Options and the Rights Agreement. number of such shares of Company Common Stock and/or Company Options such holders own is set forth on Section 3.3 4.02(a) of the Company Disclosure Letter sets forth a list of the Company’s outstanding Schedule, provided that, with respect to Company Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock Section 4.02(a) of the Company Disclosure Schedules shall provide, on an individual by individual and grant by grant basis, the date of grant, number of Company Options granted, the exercise price of such Company Options, the vesting schedule and current vesting status of each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessableCompany Option, and are not subject to any preemptive rights. All of the issued and outstanding shares of capital stock or other equity interests of each of the Subsidiaries intended treatment of the Company are owned directly or indirectly Option in connection with the transactions contemplated by the Companythis Agreement. Except as set forth in this Section 3.3above, at the close of business on the Capital Structure Date, there are no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since All of the close outstanding shares of business capital stock of the Company have been, and any shares of capital stock of the Company issuable upon the exercise of Company Options will be, duly authorized and validly issued free and clear of Encumbrances (except for Permitted Encumbrances), and are or will be fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right provided for in the DGCL, the certificate of incorporation or the bylaws of the Company, each as amended, or any Contract to which the Company is a party or otherwise bound. Except as set forth above or on Section 4.02(a) of the Capital Structure DateCompany Disclosure Schedule, no as of the date of this Agreement, there are not any options, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, preemptive rights, puts, calls, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to which the Company or any of the Company Subsidiaries is a party or by which any of them is bound (i) obligating the Company or any of the Company Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests 29 in, the Company or any security convertible into or exercisable for or exchangeable into into, or giving any Person a right to subscribe for or acquire, any shares of capital stock of, of or other equity interest in, the CompanyCompany or any Company Subsidiary, (xii) obligates obligating the Company or any of its the Company Subsidiaries to issue, grant, extend grant or enter into any such option, warrant, call, right, security, commitment, contractContract, arrangement or undertakingundertaking or (iii) pay an amount in cash or in kind with respect to, (y) restricts or based on the transfer of value of, any shares of capital stock of or other equity interest in the Company or (z) relates to the voting of any shares of capital stock of the CompanyCompany Subsidiaries.

Capitalization. The authorized capital stock of the Company Xxxxxx Xxxxxxxx consists of (a) 180,000,000 Shares and (b) 20,000,000 200 shares of preferred common stock, no par value $0.01 per share. At the close value, of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) no which 15 shares of the preferred stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All are issued and outstanding and 15 shares of capital stock are issued and held by Xxxxxx Xxxxxxxx in its treasury as of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rightsdate hereof ("Xxxxxx Xxxxxxxx Common Stock"). All of the issued and outstanding shares of capital stock or other equity Xxxxxx Xxxxxxxx Common Stock are owned, of record and beneficially, by the Xxxxxx Xxxxxxxx Shareholders in the amounts set forth in Schedule 2.1(a) hereto. All of the membership interests of each CK are, on the date hereof, owned by the CK Members in the percentages set forth in Schedule 2.1(b) hereto. All of the Subsidiaries membership interests of Fabio are, on the Company are date hereof, owned directly or indirectly by the Company. Fabio Selling Members in the percentages set forth in Section 2.1(b) hereto, and 50% by FENX, Inc. Except as set forth in this Section 3.3on Schedule 4.5, at the close there are no outstanding or authorized subscriptions, options, warrants, calls, rights, commitments or agreements of business on the Capital Structure Date, no shares of capital stock any character to which any Acquired Company or other equity securities of the Fabio is a party or by which it is bound obligating such Acquired Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the Company Fabio to issue, deliver, sell sell, repurchase or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued issued, delivered, sold sold, repurchased or transferred, or repurchased, redeemed or otherwise acquired, any shares in the authorized capital of the capital stock of, or other equity interests in, the Acquired Company or membership interests in the Acquired Company or Fabio or any security securities convertible or exercisable for into or exchangeable into any for shares in the authorized capital stock of, or other equity interest in, of the Company, (x) obligates the Acquired Company or any of its Subsidiaries membership interests in the Acquired Company or Fabio or obligating the Acquired Company or Fabio to issue, grant, extend grant or enter into any such subscription, option, warrant, call, right, securitycommitment or agreement. All outstanding shares of Xxxxxx Xxxxxxxx Common Stock are duly authorized, commitmentvalidly issued, contractfully paid and non-assessable. Except as set forth in the respective Organizational Documents or Xxxxxx Xxxxxxxx, arrangement CK or undertakingFabio, (y) restricts or as disclosed in Schedule 4.5, all outstanding shares of Xxxxxx Xxxxxxxx Common Stock, membership interests of CK, and membership interests of Fabio held by the transfer Fabio Selling Members are free of any Liens, and are not subject to preemptive rights or rights of first refusal created by statute, the Organizational Documents of the applicable Acquired Company or Fabio or any agreement to which such Acquired Company or Fabio is a party. There are no bonds, debentures, notes or other indebtedness of any Acquired Company or Fabio having the right to vote (or convertible into securities having the right to vote) on any matters on which shareholders or members of such Acquired Company or Fabio may vote. There are no other contracts, commitments, powers of attorney or agreements that will survive the Closing relating to voting, purchase or sale of, or in any other way affecting, the Xxxxxx Xxxxxxxx Common Stock or membership interests in CK or Fabio (except, in the cases of CK and Fabio, for the operating agreements of CK and Fabio). All outstanding shares of capital stock Xxxxxx Xxxxxxxx Common Stock and membership interests of CK and Fabio were issued in compliance with the Securities Act and all applicable state securities laws. All dividends and distributions by each of the Company or (z) relates to the voting of any shares of capital stock of the CompanyAcquired Companies have been made in compliance with their respective Organizational Documents and all legal requirements applicable thereto.

Capitalization. The authorized capital stock of the Company consists of (a) 180,000,000 10,000 Shares and (b) 20,000,000 no shares of preferred stock. As of the date of this Agreement, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) there are (i) 17,725,181 111 Shares were issued and outstanding, (ii) no shares 32 Shares issuable pursuant to the warrant described in Section 2.2 of the preferred stock were issued Company Disclosure Schedule (which warrant shall be contributed to the Company and outstanding, cancelled prior to the Closing) and (iii) no Shares were held by the Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, including the exercise prices of all such Options. All issued and outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. All of the issued and outstanding other shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned directly or indirectly by the Company. Except as set forth in this Section 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity voting securities of the Company were issued, reserved for issuance or outstanding. Since All of the close issued and outstanding Shares have been duly authorized and validly issued, are fully paid, non-assessable and free of business on preemptive rights. As of the Capital Structure Datedate of this Agreement, no shares bonds, debentures, notes or other indebtedness having the right to vote on any matters on which shareholders may vote of Company are issued or outstanding. Except as set forth in Section 2.2 of the Company Disclosure Schedule, there are no outstanding subscriptions, options, warrants, puts, calls, rights, exchangeable or convertible securities or other commitments or agreements of any character relating to the issued or unissued capital stock or other equity securities of the Company have been issued Company, or reserved for issuance or become outstanding, other than Shares described in clause (iv) of the second sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, the Company is not party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (w) obligates the otherwise obligating Company to issue, deliver, sell or transfer, or repurchasesell, purchase, redeem or otherwise acquire, or cause to be issued deliveredregister under the Securities Act of 1933, sold or transferred, or repurchased, redeemed or otherwise acquiredas amended (the “Securities Act”), any shares such securities. Except as set forth in Section 2.2 of the capital stock ofCompany Disclosure Schedule, there are no voting trusts, shareholder agreements, proxies or other agreements in effect with respect to the voting or transfer of the Company Common Stock or other equity interests in, of Company. No equity-based awards (including any cash awards where the Company amount of payment is determined in whole or any security convertible or exercisable for or exchangeable into in part based on the price of any capital stock of, or other equity interest in, the Company, (x) obligates the of Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (ySubsidiaries) restricts the transfer of any shares of capital stock of the Company or (z) relates to the voting of any shares of capital stock of the Companyare outstanding.