Common use of Equity Capitalization Clause in Contracts

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par value, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): (i) none of the Company’s share capital is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital of the Company or any of its Subsidiaries or options, 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, any share capital of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (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 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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereofDecember 19, 2013, the authorized capital stock of the Company consists of (i) 10,000,000 33,333,333 shares of common stockCommon Stock, $.01 par valueof which, 2,693,370 as of which the date hereof, 10,922,968 shares are issued and outstanding outstanding, 965,030 shares are reserved for issuance pursuant to the Company’s employee equity incentive compensation plans and 9,891,290 shares are reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, shares of Common Stock, and (ii) 50,000,000 5,000,000 shares of preferred stock, par value $.01 par value1.00 per share, of which 7,000,000 shares have been which, as of the date hereof, one share is issued and outstanding and designated as Series C A Voting Preferred Stock (the “Series A Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstanding”). All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed or described in Schedule 3(nthe Filed SEC Documents (other than with respect to subclause (G) or Schedule 3(obelow): (iA) none no shares of the Company’s share capital is stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (iiB) 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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries (except for agreements entered into on or after the date hereof (i) to sell Common Stock and Preferred Stock and/or (ii) to issue Common Stock in exchange for Series B Notes) or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iiiC) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness in an amount in excess of $5,000,000 (as defined in Section 3(o) hereofexcluding intercompany Indebtedness) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (ivD) there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with naming the CompanyCompany or any of its Subsidiaries (other than liens securing or permitted by the Financing Facilities); (vE) 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 Securities Act (except pursuant to the Registration Rights Agreement); (viF) 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 or repurchase a security of the Company or any of its Subsidiaries; (viiG) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesShares, the Conversion Shares or the other transactions contemplated by the Transaction Documents; (viiiH) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixI) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed or described in the SEC Documents but not so disclosed or described in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options and warrants shall or any Subsidiary’s respective businesses or which, individually or in the aggregate, do not or would not be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect reasonably likely to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company confirms that it has furnished to filed with the Buyer SEC true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 100,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 28,333,990 are issued and outstanding outstanding, 7,220,500 shares are reserved for issuance pursuant to the Company's stock option plan and Director Compensation Plan, and 5,550,392 shares are reserved for issuance upon exercise of warrants (other than the Warrants), and 1,428,571 are reserved for issuance pursuant to securities (other than the aforementioned options, shares, warrants, the Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, and (ii) 50,000,000 5,000,000 shares of preferred stock, $.01 0.25 par valuevalue per share, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of the date hereof none of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are is issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s 's share capital is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital of the Company or any of its Subsidiaries or options, 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, any share capital of the Company or any of its Subsidiaries; (iii) there are no material outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(s)) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (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 the Registration Rights Agreement)Act; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents other than those incurred in the ordinary course of the Company’s outstanding options 's or its Subsidiaries' respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer true, correct and complete copies of the Company’s 's Certificate of Incorporation, as amended and as in effect on the date hereof (the “"Certificate of Incorporation”"), and the Company’s 's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect theretothereto to the extent not available on the Xxxxx System.

Equity Capitalization. As of the date hereofMay 21, 2019, the authorized capital stock of the Company consists of (i) 10,000,000 250,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 as of May 15, 2019, 144,830,306 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, not including 36,093,565 shares of restricted common stock to be issued to Xxxx Xxxx, the Company’s Executive Chairman, which are subject to future vesting, (ii) 3,705,000 are reserved for issuance pursuant to the Company’s stock option and 30,000,000 have been designated as purchase plans, (iii) 975,000 shares of Series D E and Series F Convertible Preferred Stock, 21,841,930.34 of which $0.0001 par value per share; are issued and outstanding, (iv) 500,000 Shares of Series D Convertible Preferred Stock, of which a total of 438,536 shares are outstanding. On or about May 29, 2019 the authorized Series D Convertible Preferred Stock was increased to 2,000,000 shares. All of such the Company’s outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 the Registration Rights Agreement)Act; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does has not have issued any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreementrights; and (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company and its Subsidiaries have no liabilities or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect obligations required to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (Financial Statements in accordance with GAAP but not so disclosed in the “Class B Common Stock”), or PubCo’s Common Stock, as applicableFinancial Statements. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate certificate of Incorporationincorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par value6,613,756 Ordinary Shares, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which 2,633,500 are issued and outstanding, 194,174 shares are reserved for issuance pursuant to the Company’s stock option and 30,000,000 have been designated as Series D Preferred Stockpurchase plans and no shares are reserved for issuance pursuant to securities (other than the aforementioned options, 21,841,930.34 of which are issued the Notes and outstandingthe Warrants) exercisable or exchangeable for, or convertible into, Ordinary Shares. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate of IncorporationOrganizational Documents, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”)hereof, and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock Ordinary Shares and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 75,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 .001 par value, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which 21,000,000 are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 1,170,000 shares of which are issued reserved for issuance pursuant to the Company's stock option and outstandingpurchase plans and no other shares are reserved for issuance pursuant to securities (other than the Common Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options 's or its Subsidiaries' respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s 's Certificate of Incorporation, as amended and as in effect on the date hereof (the “"Certificate of Incorporation”"), and the Company’s 's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (ix) 10,000,000 50,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 26,812,179 shares are issued and outstanding and 10,299,544 shares are reserved for issuance pursuant to the Company’s employee incentive plan and other warrants, exercisable or exchangeable for, or convertible into, shares of Common Stock, and (iiy) 50,000,000 shares of convertible preferred stock, $.01 par value, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which none are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in set forth on Schedule 3(n) or Schedule 3(o3(q): (i) none no shares of the Company’s share capital is stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(r)) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (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 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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents (as defined herein) but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or any Subsidiary’s respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer true, correct and complete copies of the Company’s Certificate certificate of Incorporationincorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylawsbylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (ix) 10,000,000 80,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 as of the date hereof, 36,277,324 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, 7,131,376 shares are reserved for issuance pursuant to the Company’s employee incentive plan and 30,000,000 have been designated as Series D Preferred other options and warrants outstanding and 3,925,000 shares are reserved for issuance pursuant to securities (other than the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, 21,841,930.34 and (y) 5,000,000 shares of convertible preferred stock, of which as of the date hereof, 196,250, 196,250 and 392,500 shares of Series F, G and H convertible preferred stock, respectively, are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed set forth above in Schedule 3(nthis Section 3(q) or on Schedule 3(o3(q): (i) none no shares of the Company’s share capital is stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(r)) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (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 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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents (as defined herein) but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or any Subsidiary’s respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer upon such Buyer’s request, true, correct and complete copies of the Company’s Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto. Schedule 3(q) sets forth the shares of Common Stock owned beneficially or of record and Common Stock Equivalents (as defined below) held by each director and executive officer.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par value, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): (i) none of the Company’s share capital is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital of the Company or any of its Subsidiaries or options, 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, any share capital of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof)) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (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 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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n7(p) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), ) or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “"Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 100,000,000 shares of common stockCommon Stock, $.01 par valueof which, 2,693,370 of which 6,316,403 are issued and outstanding and 640,692 shares are reserved for issuance pursuant to Convertible Securities (as defined below) (other than the Notes and the Warrants) and (ii) 50,000,000 1,000,000 shares of preferred stock, $.01 par valueof which, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which none are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 . 681,509 shares of which Common Stock are issued and outstandingheld in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessablenon-assessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): (i) none 2,247,039 shares of the Company’s share issued and outstanding Common Stock on the date hereof are 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. (i) None of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the CompanyCompany or any Subsidiary; (ii) except as disclosed in the SEC Documents, 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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, amounts filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in the SEC Documents, neither the Company does not have nor any Subsidiary has any stock appreciation rights rights, restricted stock units or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall could not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylawsbylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 50,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 26,992,941 are issued and outstanding and 1,055,000 shares are reserved for issuance pursuant to securities (other than the Preferred Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 5,000,000 shares of preferred stockstock of which, $.01 par valueas of the date hereof, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which none are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(s)) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicableits Subsidiaries’ respective businesses. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto. Schedule 3(r) sets forth the shares of Common Stock owned beneficially or of record and Common Stock Equivalents (as defined below) held by each director and executive officer.

Equity Capitalization. As of the date hereof, the The authorized capital stock of the Company consists of (i) 10,000,000 100,000,000 shares of common stockCommon Stock as of the Closing Date, $.01 par valueof which: (A) as of December 31, 2,693,370 of which are 2017, 57,289,047 shares were issued and outstanding outstanding; (B) as of December 31, 2017, 4,311,674 shares were reserved for issuance pursuant to the Company’s equity incentive plans and programs; (C) as of December 31, 2017, up to 3,184,859 shares (based on the closing price of the Common Stock on December 29, 2017) were reserved, contemplated for issuance or committed, contractually or otherwise, for issuance pursuant to or in connection with the settlements of certain litigation as set out on Schedule 3(r) hereto (the “Litigation”); (D) as of December 31, 2017, 1,512,559 shares (based on the closing price of the Common Stock on December 29, 2017) were otherwise committed or contemplated for issuance as equity incentive or similar awards; and (E) as of the Initial Closing Date, no shares are reserved for issuance pursuant to securities (other than the aforementioned awards or grants, upon conversion of the Notes, for the payment of interest in Interest Shares or exercise of the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, and (ii) 50,000,000 as of the Initial Closing Date, 5,000,000 shares of preferred stock, par value $.01 par value0.001 per share, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 none of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and or outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(p): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) except as described above, 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 or exchangeable for, any share shares of capital stock of the Company or any of its SubsidiariesCompany, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares or capital stock of the Company or any of its Subsidiaries Company, or options, 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, any share shares of capital stock of the Company or any of its Subsidiariesthe Guarantors; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries the Guarantors is obligated to register the sale of any of their securities under the 1933 Act (except pursuant to the Registration Rights Agreement, in connection with the Company’s equity incentive plans or programs or pursuant to the Litigation); (viiv) there are no outstanding securities or instruments of the Company or any of its Subsidiaries the Guarantors 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 the Guarantors is or may become bound to redeem a security of the Company or any of its Subsidiariesthe Guarantors; (viiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (viiivi) except for outstanding or otherwise committed awards under the Company’s equity incentive plans and programs of the type described above, the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished or made available to the Buyer Buyers true, correct and complete copies of the Company’s Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Amended and Restated Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereofDecember 31, 2023, the authorized capital stock of the Company consists of (i) 100,000,000 shares of Company Common Stock, of which as of December 31, 2023, 68,629,575 shares were issued and outstanding, 9,573,937 shares were issuable under outstanding options to purchase Company Common Stock at a weighted average exercise price of $4.80 per share, 1,657,978 shares were issuable upon the vesting of restricted stock units and 415,572 shares were issuable under outstanding warrants to purchase Company Common Stock at a weighted average exercise price of $3.83 per share, and (ii) 10,000,000 shares of common stockpreferred stock of Company, $.01 par value, 2,693,370 none of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par value, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and or outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): the SEC Reports (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its SubsidiariesCompany, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its SubsidiariesCompany; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, amounts filed in connection with the Company; (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 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 SubsidiariesCompany; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivi) the Company does not have any has no stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixvii) all the Company has no liabilities or obligations required to be disclosed in the SEC Reports which are not so disclosed in the SEC Reports, other than those incurred in the ordinary course of the Company’s outstanding options business and warrants shall be cancelled at Closing; and (x) no securities which, individually or in the aggregate, do not or could not have a Material Adverse Effect. All of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger issued and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all outstanding shares of the Company’s capital stock have been duly authorized and validly issued and are fully paid and nonassessable; none of such shares were issued in violation of any preemptive rights; and such shares were issued in compliance with applicable state and federal securities law and any rights of third parties. There are no other outstanding stock shall warrants, options, convertible securities or other rights, agreements or arrangements of any character under which the Company is or may be owned obligated to issue any equity securities of any kind, except as contemplated by PubCo this Agreement. There are no voting agreements, buy-sell agreements, option or right of first purchase agreements or other agreements of any kind between the Company and any of its securityholders relating to Company securities held by them. Except as provided in that certain: (i) Common Stock Purchase Agreement, dated as of December 12, 2023, by and among Liquidia Corporation and certain purchasers signatory thereto, (ii) all other securities issued Registration Rights Agreement, dated as of April 12, 2021, by and among Liquidia Corporation and certain purchasers signatory thereto and (iii) Registration Rights Agreement, dated as of December 23, 2019, by and among Liquidia Technologies, Inc. and certain Company stockholders signatory thereto, no Person has the right to require the Company (includingto register any Company securities under the 1933 Act, without limitation, whether on a demand basis or in connection with the Series C Preferred Stock, registration of Company securities for its own account or for the Series D Preferred Stock and account of any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect theretoother Person.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 shares of common stockunlimited Common Shares, $.01 par value, 2,693,370 of which 65,774,645 shares are issued and outstanding outstanding, no shares are held in treasury, and 10,097,841 shares are reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, Common Shares (other than the Convertible Notes), and (ii) 50,000,000 unlimited shares of preferred stock, $.01 par valuenone of which, as of which 7,000,000 shares have been designated as Series C Preferred Stockthe date hereof, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. As of the date hereof and as of the Closing Date, the number of Current Fully Diluted Outstanding Shares is and will be 75,872,486. Except as disclosed in Schedule 3(n) or Schedule 3(o3(q): (i) none of the Company’s share or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the CompanyCompany or any Subsidiary; (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 or exchangeable for, any share capital stock of the Company or any of its the Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its the Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its the Subsidiaries or options, 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, any share capital stock of the Company or any of its the Subsidiaries; (iii) other than the Notes, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) of the Company or any of its the Subsidiaries or by which the Company or any of its the Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company; (v) there are no agreements or arrangements under which the Company or any of its the Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except pursuant to the Third Amended and Restated Registration Rights Agreement); (viv) there are no outstanding securities or instruments of the Company or any of its the 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 the Subsidiaries is or may become bound to redeem a security of the Company or any of its the Subsidiaries; (viivi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesHolder Exchanged Shares; (viiivii) neither the Company does not have nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixviii) all neither the Company nor any of the Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or the Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall could not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Holder true, correct and complete copies of the Company’s Certificate Articles of Amendment, Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s Bylawsbylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 213,527,214 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which 173,114,301 are issued and outstanding and 14,003,222 shares are reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 5,000,000 shares of preferred stockPreferred Stock, $.01 no par value, of which 7,000,000 none are outstanding. No shares have been designated as Series C Preferred Stock, 6,825,780 of which Common Stock are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstandingheld in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): (i) none None of the Company’s share or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Company or any Subsidiary. Except as disclosed in the SEC Documents, 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 or exchangeable for, any share capital stock of the Company or any of its SubsidiariesSubsidiary, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries Subsidiary is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries Subsidiary or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) Subsidiary. Except as disclosed in the SEC Documents, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) of the Company or any of its Subsidiaries Subsidiary or by which the Company or any of its Subsidiaries Subsidiary is or may become bound; (iv) there . There are no financing statements securing obligations in any material amounts, either singly or in the aggregate, amounts filed in connection with the Company; (v) there Company or any Subsidiary. There are no agreements or arrangements under which the Company or any of its Subsidiaries Subsidiary is obligated to register the sale of any of their securities under the 1933 Act (except pursuant to the Registration Rights AgreementAgreement and the Company’s registration rights agreement dated June 21, 2010); (vi) . Except as disclosed in the SEC Documents, there are no outstanding securities or instruments of the Company or any of its the 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 Subsidiary is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there Subsidiary. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Common Shares. Neither the Company does not have nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all . Neither the Company nor any Subsidiary has any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or the Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation systemcould not have a Material Adverse Effect. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all Copies of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s Bylawsbylaws, as amended and as in effect on the date hereof (the “Bylaws”), have been filed as exhibits with the SEC and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and are available on the material rights of the holders thereof in respect theretoSEC’s website at xxx.xxx.xxx.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 400,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which are 82,676,400 shares were issued and outstanding as of the date hereof, 10,579,000 shares were subject to outstanding options granted pursuant to the Company’s stock option and purchase plans as of the date hereof, 29,324,918 shares were reserved for issuance pursuant to the Company’s stock option and purchase plans as of the date hereof, 2009 and 48,489,122 shares are reserved for issuance pursuant to securities (other than the Note and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 shares of preferred stock, $.01 no par value, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which none are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): 2.18: (i) none of the Company’s share capital is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital of the Company or any of its Subsidiaries or options, 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, any share capital of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 Liens existing on or against any material amounts, either singly property of the Company or in the aggregate, filed in connection with the Companyany of its subsidiaries; (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 Securities Act (except 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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company and its Subsidiaries have no liabilities or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect obligations required to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (SEC Documents but not so disclosed in the “Class B Common Stock”), or PubCo’s Common Stock, as applicableSEC Documents. The Company has furnished to the Buyer Investor true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 300,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which are 144,784,887 shares were issued and outstanding as of May 11, 2005, 18,927,217 shares were subject to outstanding options granted pursuant to the Company’s stock option and purchase plans as of May 11, 2005, 12,482,147 shares were reserved for issuance pursuant to the Company’s stock option and purchase plans as of May 11, 2005 and 60,000 shares are reserved for issuance pursuant to securities (other than the Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 10,000,000 shares of preferred stock, $.01 0.001 par value, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which none are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share capital is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital of the Company or any of its Subsidiaries or options, 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, any share capital of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (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 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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 200,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 2,464,160 shares are issued and outstanding outstanding, 608,464 shares are reserved for issuance pursuant to the Company’s stock option and purchase plans and 413,043 shares are reserved for issuance pursuant to securities (other than the aforementioned options) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 shares of preferred stock, par value $.01 par value0.0001 per share, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 none of which are issued and outstanding, outstanding as of the date hereof and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 (iii) 1,814,688 shares of which are issued and outstandingCommon Stock held by non-affiliates of the Company. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed set forth in Schedule 3(n) or Schedule 3(o): the SEC Documents: (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereofbelow) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 that 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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all . The Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or any of its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 1,000,000,000 shares of preferred stock, $.01 par valuestock (the “Preferred Stock”) and 4,000,000,000 shares of Common Stock, of which 7,000,000 as of the date hereof, 1,000,000 shares have been designated as Series C of Preferred Stock, 6,825,780 Stock and 15,045,331 shares of which Common Stock are issued and outstanding, and 30,000,000 have been designated as Series D Preferred no shares are reserved for issuance pursuant to securities (other than the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in set forth on Schedule 3(n) or Schedule 3(o3(r): (i) none no shares of the Company’s share capital is stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(s)) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 the Registration Rights Agreement)Act; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or any Subsidiary’s respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer Buyers upon such Buyer’s request, true, correct and complete copies of the Company’s Certificate Memorandum of IncorporationAssociation, as amended and as in effect on the date hereof (the “Certificate Memorandum of IncorporationAssociation”), and the Company’s BylawsArticles of Association, as amended and as in effect on the date hereof (the “Bylaws"Articles of Association”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which 17,746,413 are issued and outstanding, 2,148,500 shares are reserved for issuance pursuant to the Company’s stock option and 30,000,000 have been designated as Series D Preferred purchase plans and 33,125 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 200,000,000 shares of common Common Stock, of which as of the date hereof, 8,897,645 shares are issued and outstanding, 58,271 shares are reserved for issuance pursuant to the Company’s stock option and purchase plans and 14,005,269 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 5,000,000 shares of preferred stock, par value $.01 par value0.001 per share, 2,693,370 89,347 of which are issued and outstanding as of the date hereof and (iiiii) 50,000,000 there are 22,671 shares of preferred stock, $.01 par value, Common Stock held by non-affiliates of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstandingthe Company. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(u)(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 or exchangeable for, any share shares of capital stock of the Company or any of its SubsidiariesCompany, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares or capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its SubsidiariesCompany; (iii) Schedule 3(u)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(u)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company; (v) Schedule 3(u)(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) Schedule 3(u)(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 SubsidiariesCompany; (vii) Schedule 3(u)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company has no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options business and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 200,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 117,793,755 shares are issued and outstanding outstanding, 21,000,000 shares are reserved for issuance pursuant to the Company's stock option and purchase plans and 12,500,186 shares are reserved for issuance pursuant to securities (other than the aforementioned options) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 shares of preferred stock, par value $.01 par value0.0001 per share, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 none of which are issued and outstanding, outstanding as of the date hereof and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 (iii) there are 78,447,173 shares of which are issued and outstandingCommon Stock held by non-affiliates of the Company. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): (i) Schedule 3(r)(i), none of the Company’s share 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(r)(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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(r)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(r)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (v) Schedule 3(r)(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) Schedule 3(r)(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 Subsidiaries; (vii) Schedule 3(r)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(r)(viii), the Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) all Schedule 3(r)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options 's or any of its Subsidiary's' respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer Buyers true, correct and complete copies of the Company’s Certificate 's Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate "Articles of Incorporation”"), and the Company’s 's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized share capital stock of the Company consists of (i) 10,000,000 shares an unlimited number of common stockCommon Shares, $.01 par value, 2,693,370 of which as of the date hereof, 20,943,758 are issued and outstanding and (ii) 50,000,000 an unlimited number of shares of variable multiple preferred stock, $.01 without par value, of which 7,000,000 as of the date hereof, 1,120,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D (iii) 2,000,000 Class A Preferred Stockshares, 21,841,930.34 of which none are issued and outstanding and (iv) 2,000,000 Class B Preferred shares, of which 600,000 are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s 's share capital is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital of the Company or any of its Subsidiaries or options, 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, any share capital of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 or file a prospectus under any applicable Canadian Securities Law (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options 's or its Subsidiaries' respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s 's Notice of Articles, Certificate of Incorporation, as amended Articles and amendments thereto and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”"Articles"), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock Shares and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which 17,484,171 are issued and outstanding, 2,000,000 shares are reserved for issuance pursuant to the Company’s stock option and 30,000,000 have been designated as Series D Preferred purchase plans and 2,120,001 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, hereof and prior to issuance of the Securities and the closing of the transactions contemplated by the Other Financing: (i) the authorized capital stock of the Company Holdings consists of (ia) 10,000,000 75,000,000 shares of common stockCommon Stock, $.01 .0001 par valuevalue per share, 2,693,370 of which 180,927.835 are issued and outstanding outstanding, and (iib) 50,000,000 10,000,000 shares of preferred stock, $.01 .0001 par valuevalue per share, none of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are is issued and outstandingoutstanding or reserved for issuance; (ii) there are no shares reserved for issuance pursuant to any stock option and purchase plans and no shares are reserved for issuance pursuant to securities (other than the Preferred Shares, the Warrants and 30,000,000 have been designated the Notes and warrants issued as Series D Preferred part of the Other Financing) exercisable or exchangeable for, or convertible into, shares of Common Stock, 21,841,930.34 ; (iii) all of which are issued and outstanding. All of such the outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): ; (iiv) none of the CompanyHoldings’s share capital is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the CompanyHoldings; (iiv) 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 or exchangeable for, any share capital of the Company Holdings or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company Holdings or any of its Subsidiaries is or may become bound to issue additional share capital of the Company Holdings or any of its Subsidiaries or options, 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, any share capital of the Company Holdings or any of its Subsidiaries; (iiivi) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) of the Company Holdings or any of its Subsidiaries or by which the Company Holdings or any of its Subsidiaries is or may become boundbound (other than the Senior Indebtedness and Permitted Indebtedness); (ivvii) there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with Holdings other than in connection with the CompanySenior Indebtedness; (vviii) there are no agreements or arrangements under which the Company Holdings or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement)Act; (viix) there are no outstanding securities or instruments of the Company Holdings or any of its Subsidiaries which that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company Holdings or any of its Subsidiaries is or may become bound to redeem a security of the Company Holdings or any of its Subsidiaries; (viix) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiixi) the Company Holdings does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (xxii) Holdings and its Subsidiaries have no securities of the Company liabilities or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect obligations required to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of Holdings’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company Holdings has furnished to the Buyer Buyers true, correct and complete copies of the CompanyHoldings’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the CompanyHoldings’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to . Holdings has no securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect theretoStock.

Equity Capitalization. (a) As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 100,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 as of the date hereof, 26,188,550 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been (ii) 2,500,000 shares of preferred stock, no par value, of which as of the date hereof, 880,000 shares are designated as Series D 10% Convertible Preferred Stock (the “10% Convertible Preferred Stock”), 21,841,930.34 of which as of the date hereof, 706,023 shares of 10% Convertible Preferred Stock are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are issued, fully paid and nonassessable. . (b) Except as disclosed in set forth on Schedule 3(n) or Schedule 3(o): 4.11 of the Disclosure Schedule, (i) none no shares of the Company’s share capital is stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; , (ii) there are no outstanding options, warrants, scrip, or rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share purchase capital stock of the Company or any of its SubsidiariesAxion International, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries Axion International is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries Axion International or options, warrants, scrip, or rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share purchase capital stock of the Company or any of its Subsidiaries; Axion International, (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries Axion International is obligated to register the sale of any of their securities under the 1933 Act (except pursuant to the Registration Rights Agreement); , (viiv) there are no outstanding securities or instruments of the Company or any of its Subsidiaries Axion International 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 Axion International is or may become bound to redeem a security of the Company or any of its Subsidiaries; Axion International, and (viiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 170,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which 63,063,707 are issued and outstanding, 12,710,288 shares are reserved for issuance pursuant to the Company’s stock option and 30,000,000 have been designated as Series D Preferred purchase plans and 19,098,248 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): the SEC Documents: (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (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); (viv) 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 Subsidiaries; (viivi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixviii) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall which, individually or in the aggregate, do not or would not reasonably be cancelled at Closing; and (x) no securities of expected to have a Material Adverse Effect. Included in the Company or PubCo SEC Documents are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 0.001 par valuevalue per share, none of which is issued and outstanding, and 335,000,000 shares of Common Stock, of which 7,000,000 as of the date hereof, 107,428,360 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, 11,404,000 shares are reserved for issuance pursuant to the Company’s stock option and 30,000,000 have been designated as Series D Preferred Stockpurchase plans and 189,433,841 shares are reserved for issuance pursuant to securities (including the Outstanding Debentures and the Outstanding Warrants) exercisable or exchangeable for, 21,841,930.34 or convertible into, shares of which are issued and outstandingCommon Stock (subject to increase to cover the anti-dilution provisions associated therewith). All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n3(r) or Schedule 3(o): the Company’s Quarterly Report on Form 10-Q for the period ending February 28, 2007: (i) none of the Company’s share capital is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital of the Company or any of its Subsidiaries or options, 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, any share capital of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect theretoits Subsidiaries’ respective businesses.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 23,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 as of the date hereof, 8,175,095 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, 1,178,064 shares are reserved for issuance pursuant to the Company’s stock option and 30,000,000 have been designated as Series D Preferred purchase plans and 164,083 shares are reserved for issuance pursuant to securities (other than the aforementioned options and the Notes) exercisable or exchangeable for, or convertible into, shares of Common Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) of the Company or any of its Subsidiaries which are convertible into or by which the Company or exchangeable for any shares of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with capital stock of the Company; (viv) 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); (viv) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisionsprovisions (other than rights to purchase shares of Common Stock of employees in accordance with Approved Stock Plans (as defined in the Notes) and other agreements consistent with past practices), 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 Subsidiaries; (viivi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (viiivii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished made available to the Buyer Buyers true, correct and complete copies of the Company’s Certificate Articles of IncorporationAssociation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 100,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 33,482,217 are issued and outstanding and 12,402,722 shares are reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 5,000,000 shares of preferred stockstock of which, $.01 par valueas of the date hereof, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which 47,116 are issued and outstanding, and 30,000,000 have been designated as Series D Convertible Preferred Stock, 21,841,930.34 of which Stock and are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in the SEC Documents or on Schedule 3(n) or Schedule 3(o3(q): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(s)) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 that are not currently registered (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesCommon 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) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicableits Subsidiaries’ respective businesses. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized share capital stock of the Company consists of (i) 10,000,000 shares an unlimited number of common stockCommon Shares, $.01 of which as of the date hereof, 20,906,458 are outstanding and 20,943,758 are issued (ii) an unlimited number of Variable multiple voting shares, without par value, 2,693,370 of which as of the date hereof, 1,120,000 are issued and outstanding (iii) 2,000,000 Class A Preferred shares of which none are issued and outstanding and (iiiv) 50,000,000 2,000,000 Class B Preferred shares of preferred stock, $.01 par value, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which 600,000 are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s 's share capital is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital of the Company or any of its Subsidiaries or options, 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, any share capital of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 or file a prospectus under any applicable Canadian Securities Law (except the Registration Rights Agreementpursuant to Section 9); (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options 's or its Subsidiaries' respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s 's Notice of Articles, Certificate of Incorporation, as amended Articles and amendments thereto and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”"Articles"), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock Shares and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, hereof and prior to issuance of the Securities and the closing of the transactions contemplated by the Other Financing: (i) the authorized capital stock of the Company Holdings consists of (ia) 10,000,000 75,000,000 shares of common stockCommon Stock, $.01 .0001 par valuevalue per share, 2,693,370 of which 180,927.835 are issued and outstanding outstanding, and (iib) 50,000,000 10,000,000 shares of preferred stock, $.01 .0001 par valuevalue per share, none of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are is issued and outstandingoutstanding or reserved for issuance; (ii) there are no shares reserved for issuance pursuant to any stock option and purchase plans and no shares are reserved for issuance pursuant to securities (other than the Notes, the Warrants and 30,000,000 have been designated the Preferred Equity and warrants issued as Series D Preferred part of the Other Financing) exercisable or exchangeable for, or convertible into, shares of Common Stock, 21,841,930.34 ; (iii) all of which are issued and outstanding. All of such the outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): ; (iiv) none of the CompanyHoldings’s share capital is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the CompanyHoldings; (iiv) 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 or exchangeable for, any share capital of the Company Holdings or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company Holdings or any of its Subsidiaries is or may become bound to issue additional share capital of the Company Holdings or any of its Subsidiaries or options, 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, any share capital of the Company Holdings or any of its Subsidiaries; (iiivi) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) of the Company Holdings or any of its Subsidiaries or by which the Company Holdings or any of its Subsidiaries is or may become boundbound (other than the Senior Indebtedness and Permitted Indebtedness); (ivvii) there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with Holdings other than in connection with the CompanySenior Indebtedness; (vviii) there are no agreements or arrangements under which the Company Holdings or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement)Act; (viix) there are no outstanding securities or instruments of the Company Holdings or any of its Subsidiaries which that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company Holdings or any of its Subsidiaries is or may become bound to redeem a security of the Company Holdings or any of its Subsidiaries; (viix) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiixi) the Company Holdings does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (xxii) Holdings and its Subsidiaries have no securities of the Company liabilities or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect obligations required to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of Holdings’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company Holdings has furnished to the Buyer Buyers true, correct and complete copies of the CompanyHoldings’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the CompanyHoldings’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to . Holdings has no securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect theretoStock.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which 18,323,872 are issued and outstanding, 4,000,000 shares are reserved for issuance pursuant to the Company’s stock option and 30,000,000 have been designated as Series D Preferred purchase plans and 2,120,001 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 the Registration Rights Agreementpursuant to Section 4(u) hereof); (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the The authorized capital stock of the Company Bank consists of (i) 10,000,000 100,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which 767,437 shares are issued and outstanding outstanding, and (ii) 50,000,000 2,000,000 shares of preferred stock, $.01 1.00 par valuevalue per share, of which 7,000,000 no shares have been designated as Series C Preferred Stock, 6,825,780 of which preferred stock are issued and outstanding. Additionally, and 30,000,000 have been designated as Series D Preferred the Bank has entered into subscription agreements with certain individuals (including members of proposed new management team) to purchase up to 800,000 shares of Common Stock and, upon such acquisitions of Common Stock, 21,841,930.34 warrants to purchase up to 2,202,605 shares of which are issued and outstandingCommon Stock. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): (i) none None of the CompanyBank’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Bank. Except as disclosed in this Section 3(t), 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 or exchangeable for, any share shares of capital stock of the Company or any of its SubsidiariesBank, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries Bank is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries Bank or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (v) there Bank. There are no agreements or arrangements under which the Company or any of its Subsidiaries Bank is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement); (vi) there Act. There are no outstanding securities or instruments of the Company or any of its Subsidiaries Bank which contain any redemption or similar provisions, and and, except for a put right whereby, within 90 days after regulatory approval, shareholders of the Bank who held shares immediately prior to the Closing have the right to cause the Bank to repurchase only the shares held by them prior to the Closing (for a total of 767,437 shares) for $11.00 per share, there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries Bank is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there Bank. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company Common Shares. The Bank does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 100,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 21,576,544 are issued and outstanding outstanding, 2,710,900 shares are reserved for issuance pursuant to the Company’s stock option and purchase plans, 3,400,000 shares are reserved for issuance pursuant to the Relativity Agreement (as defined below) and 984,284 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 25,000,000 shares of preferred stock, par value $.01 par value0.0001 per share, of which 7,000,000 shares have been designated which, as Series C Preferred Stockof the date hereof, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which none are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 9,375,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 as of the date hereof, 2,280,553 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, 506,107 shares are reserved for issuance pursuant to the Company’s stock option and 30,000,000 have been designated as Series D Preferred purchase plans and 78,438 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares or capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or any of its Subsidiary’s’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer Buyers true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s BylawsByLaws, as amended and as in effect on the date hereof (the “BylawsByLaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 640,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 9,318,741 are issued and outstanding and 1,097,684 shares are reserved for issuance pursuant to securities (other than the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 (x) 900,000 shares of preferred stock, $.01 par value, of which 7,000,000 shares have been designated as Series C stock (the "Existing Preferred Stock", 6,825,780 520,392 of which are issued and outstandingwhich, and 30,000,000 have been designated as Series D Preferred Stockof the date hereof, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in set forth on Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(s)) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options 's or its Subsidiaries' respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate 's Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate "Articles of Incorporation”"), and the Company’s 's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 1,000,000,000 shares of common stockCommon Stock, $.01 par valueof which, 2,693,370 of which 158,121,566 shares are issued and outstanding and 15,623,425 shares are reserved for issuance pursuant to Convertible Securities (as defined below) (other than the Notes and the Warrants) and (ii) 50,000,000 10,000,000 shares of preferred stock, $.01 par valueof which, of which 7,000,000 shares 626,667 have been designated as Series C B Preferred Stock, 6,825,780 of which Stock and are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 . 162,500 shares of which Common Stock are issued and outstandingheld in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessablenon-assessable. 25,912,911 shares of the Company’s issued and outstanding Common Stock on the date hereof are 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. Except as disclosed in Schedule 3(n) or Schedule 3(o): 4(u), (i) none of the Company’s share or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the CompanyCompany or any Subsidiary; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, amounts filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company does not have nor any Subsidiary has any stock appreciation rights rights, restricted stock units or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall could not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylawsbylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 100,000,000 shares of Common Stock, of which as of the date hereof, 30,284,414 shares are issued and outstanding, 2,061,393 shares are reserved for issuance pursuant to the Company’s stock option and purchase plans and 1,599,998 shares are reserved for issuance pursuant to securities (other than the aforementioned options and the Notes) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 10,000,000 shares of common preferred stock, $.01 par value, 2,693,370 of which 0 shares are issued and outstanding and (iiiii) 50,000,000 there are 12,450,874 shares of preferred stock, $.01 par value, Common Stock held by non-affiliates of which 7,000,000 the Company (total shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, outstanding without officers and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstandingdirectors). All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): 3(r), (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) except as set forth above, 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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 the Registration Rights Agreement)Act; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company does not have nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or any of its Subsidiary’s respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 150,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which 4,001,832 are issued and outstanding, 10,000,000 shares are reserved for issuance pursuant to the Company’s stock option and 30,000,000 have been designated as Series D Preferred purchase plans and 10,417,586 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the New Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 the Registration Rights Agreementpursuant to Section 4(t) hereof); (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereofSeptember 30, 2023, the authorized capital stock of the Company consists of (i) 80,000,000 shares of Company Common Stock, of which as of September 30, 2023, 64,899,295 were issued and outstanding, 415,572 were issuable under outstanding options to purchase Company Common Stock at a weighted average exercise price of $4.79 per share, 1,730,523 shares were issuable upon the vesting of restricted stock units and, 415,572 shares were issuable under outstanding warrants to purchase Company Common Stock at a weighted average exercise price of $3.83 per share, and (ii) 10,000,000 shares of common stockpreferred stock of Company, $.01 par value, 2,693,370 none of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par value, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and or outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): the SEC Reports (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its SubsidiariesCompany, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its SubsidiariesCompany; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, amounts filed in connection with the Company; (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 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 SubsidiariesCompany; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivi) the Company does not have any has no stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixvii) all the Company has no liabilities or obligations required to be disclosed in the SEC Reports which are not so disclosed in the SEC Reports, other than those incurred in the ordinary course of the Company’s outstanding options business and warrants shall be cancelled at Closing; and (x) no securities which, individually or in the aggregate, do not or could not have a Material Adverse Effect. All of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger issued and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all outstanding shares of the Company’s capital stock have been duly authorized and validly issued and are fully paid and nonassessable; none of such shares were issued in violation of any preemptive rights; and such shares were issued in compliance with applicable state and federal securities law and any rights of third parties. There are no other outstanding stock shall be owned by PubCo and (ii) all warrants, options, convertible securities or other securities issued by rights, agreements or arrangements of any character under which the Company (includingis or may be obligated to issue any equity securities of any kind, without limitationexcept as contemplated by this Agreement. There are no voting agreements, buy-sell agreements, option or right of first purchase agreements or other agreements of any kind between the Company and any of its securityholders relating to Company securities held by them. Except as provided in the Registration Rights Agreement, that certain Registration Rights Agreement, dated as of December 23, 2019, by and among Liquidia Technologies, Inc. and certain Company stockholders signatory thereto, the Series C Preferred StockRegistration Rights Agreement, the Series D Preferred Stock that certain Registration Rights Agreement, dated as of April 12, 2021, by and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”)among Liquidia Technologies, PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct Inc. and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”)certain purchasers signatory thereto, and all agreements relating except as provided in that certain Seventh Amended and Restated Investors’ Rights Agreement, dated as of February 2, 2018, by and among Liquidia Technologies, Inc. and certain investors signatory thereto, no Person has the right to require the Company to register any Company securities convertible intounder the 1933 Act, whether on a demand basis or exercisable in connection with the registration of Company securities for its own account or exchangeable for, shares for the account of Common Stock and the material rights of the holders thereof in respect theretoany other Person.

Equity Capitalization. As of the date hereof, after giving effect to the Charter Amendment (as defined in Section 6(k)), the authorized capital stock of the Company consists of (i) 10,000,000 316,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 60,124,414 are issued and outstanding, 37,506,136 shares are reserved for issuance pursuant to outstanding options and warrants to purchase Common Stock, and (ii) 50,000,000 144,049,147 shares of preferred stock, $.01 par valuePreferred Stock, of which 7,000,000 shares have been (i) 22,668,764 are designated as Series A Convertible Preferred Stock and 22,668,764 are issued and outstanding, (ii) 47,489,824 are designated Series B Convertible Preferred Stock and 47,489,822 are issued and outstanding, (iii) 22,935,780 are designated Series C Convertible Preferred StockStock and 21,223,750 are issued and outstanding, 6,825,780 of which (iv) 50,954,779 are designated Series D Convertible Preferred Stock and 50,596,158 are issued and outstanding, and 30,000,000 have been designated as Series D (v) collectively, an aggregate of 141,978,494 shares of Preferred Stock, 21,841,930.34 of which Stock are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in set forth on Schedule 3(n) or Schedule 3(o): 3(k), (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (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 Securities Act (except pursuant to the Registration Rights AgreementAgreement and the Company Investor Rights Agreement (as defined in Section 8)); (viiv) 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 Subsidiaries; (viiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (viiivi) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to or documents evidencing the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 shares of common stockunlimited Common Shares, $.01 par value, 2,693,370 of which 65,774,645 shares are issued and outstanding outstanding, no shares are held in treasury, and 10,097,841 shares are reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, Common Shares (other than the Convertible Notes), and (ii) 50,000,000 unlimited shares of preferred stock, $.01 par valuenone of which, as of which 7,000,000 shares have been designated as Series C Preferred Stockthe date hereof, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. As of the date hereof and as of the Closing Date, the number of Current Fully Diluted Outstanding Shares is and will be 75,872,486. Except as disclosed in Schedule 3(n) or Schedule 3(o3(q): (i) none of the Company’s share or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the CompanyCompany or any Subsidiary; (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 or exchangeable for, any share capital stock of the Company or any of its the Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its the Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its the Subsidiaries or options, 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, any share capital stock of the Company or any of its the Subsidiaries; (iii) other than the Notes, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) of the Company or any of its the Subsidiaries or by which the Company or any of its the Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company; (v) there are no agreements or arrangements under which the Company or any of its the Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except pursuant to the Third Amended and Restated Registration Rights Agreement); (viv) there are no outstanding securities or instruments of the Company or any of its the 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 the Subsidiaries is or may become bound to redeem a security of the Company or any of its the Subsidiaries; (viivi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivii) neither the Company does not have nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixviii) all neither the Company nor any of the Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or the Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall could not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Holder true, correct and complete copies of the Company’s Certificate Articles of Amendment, Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s Bylawsbylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereofOctober 27, 2022, the authorized capital stock of the Company consists of (i) 10,000,000 300,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which 38,540,276 shares are issued and outstanding outstanding, 10,106,838 shares (as may be adjusted in accordance with the terms of the Company’s stock incentive plans) are reserved for issuance pursuant to the Company’s stock incentive plans and no shares are reserved for issuance pursuant to securities (other than the aforementioned options and the Securities) exercisable or exchangeable for, or convertible into, Common Stock; and (ii) 50,000,000 10,000,000 shares of preferred stock, par value $.01 par value0.001 per share, of which 7,000,000 0 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. As of October 27, 2022, the Company has outstanding equity awards to employees with respect to 3,217,390 shares of Common Stock. Except as disclosed in Schedule 3(n) or Schedule 3(o): 4.5: (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) other than the Notes, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (viii) neither the Company does not have nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 300,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 37,439,536 are issued and outstanding and 101,843,611 shares are reserved for issuance pursuant to securities (other than the Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 30,000 shares of preferred stock, $.01 par value, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which 20,240 are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): 3(r), as of the date hereof: (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 35,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 as of the date hereof, not more than 18,200,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, 2,100,000 shares are reserved for issuance pursuant to the Company’s employee incentive plan and 30,000,000 have been designated as Series D Preferred other options and warrants outstanding and 264,541 shares are reserved for issuance pursuant to securities (other than the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in set forth on Schedule 3(n) or Schedule 3(o3(r): (i) none no shares of the Company’s share capital is stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(s)) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents (as defined herein) but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or any Subsidiary’s respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer upon such Buyer’s request, true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereofhereof and giving effect to the closing of the transactions contemplated hereby, including the filing of the Designation, the authorized capital stock of the Company consists of (ix) 10,000,000 100,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 67,056,428 shares are issued and outstanding, 4,613,320 shares are reserved for issuance pursuant to the Company’s stock option plans, including shares reserved for issuance upon exercise of outstanding stock options, and 3,345,400 shares are reserved for issuance upon exercise of outstanding warrants and nonplan options to purchase shares of Common Stock, and (iiy) 50,000,000 4,000,000 shares of preferred stock, $.01 par valueof which, of which 7,000,000 shares have been designated as Series C after giving effect to the Closing, only the Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which Shares issuable pursuant to this Agreement are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in the SEC documents or on Schedule 3(n) or Schedule 3(o3(q): (i) none no shares of the Company’s share capital is stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(r)) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (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 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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Investors true, correct and complete copies of the Company’s Amended and Restated Certificate of Incorporation, as amended amended, and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Amended and Restated Bylaws, as amended amended, and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 640,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 12,544,072 are issued and outstanding and 2,668,355 shares are reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 (x) 900,000 shares of preferred stock, $.01 par value, of which 7,000,000 shares have been designated as Series C stock (the "Existing Preferred Stock"), 6,825,780 520,392 of which are issued and outstandingwhich, and 30,000,000 have been designated as Series D Preferred Stockof the date hereof, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in set forth on Schedule 3(n) or Schedule 3(o3(p): (i) none of the Company’s share 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(q)) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options 's or its Subsidiaries' respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer Buyers true, correct and complete copies of the Company’s Certificate 's Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate "Articles of Incorporation”"), and the Company’s 's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 9,375,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 as of the date hereof, 2,706,791 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, 468,952 shares are reserved for issuance pursuant to the Company’s stock option and 30,000,000 have been designated as Series D Preferred purchase plans and 228,438 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares or capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or any of its Subsidiary’s’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer Buyers true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s BylawsByLaws, as amended and as in effect on the date hereof (the “BylawsByLaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (ix) 10,000,000 50,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 24,266,497 shares are issued and outstanding and 10,525,345 shares are reserved for issuance pursuant to the Company's employee incentive plan and other warrants, exercisable or exchangeable for, or convertible into, shares of Common Stock, and (iiy) 50,000,000 shares of convertible preferred stock, $.01 par value, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which none are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in set forth on Schedule 3(n) or Schedule 3(o3(q): (i) none no shares of the Company’s share 's capital is stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(r)) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (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 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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents (as defined herein) but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options 's or any Subsidiary's respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer true, correct and complete copies of the Company’s Certificate 's certificate of Incorporationincorporation, as amended and as in effect on the date hereof (the “"Certificate of Incorporation”"), and the Company’s Bylaws's bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereofimmediately prior to Closing, the authorized capital stock of the Company consists of (i) 10,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 shares have been designated as Series C Preferred Stockof the date hereof, 6,825,780 of which 10,075,424 are issued and outstanding, up to 3,348,346 shares are reserved for issuance pursuant to the Company’s stock option plans and 30,000,000 have been designated as Series D Preferred 7,510,318 shares are reserved for issuance pursuant to warrants (other than the Warrants and the options covered above) exercisable for shares of Common Stock, 21,841,930.34 667,831 shares of which are issued Common Stock issuable upon conversion of outstanding convertible debt and outstanding(ii) a total of 6,008,536 shares of Common Stock issuable upon conversion of preferred stock. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed herein or in the Company’s filings with the SEC as available on XXXXX (the “SEC Filings”) or as disclosed in Schedule 3(n) or Schedule 3(o3(r): (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit or loan agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereofbelow) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 purchase, repurchase, retire or redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company and its Subsidiaries have no liabilities or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect obligations required to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall the SEC Documents but not so disclosed in the SEC Documents, other than those which, individually or in the aggregate, do not or would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect theretothereto are disclosed in the SEC Filings.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 225,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 11,744,056 are issued and outstanding outstanding, 2,235,669 shares will be reserved for issuance upon the exercise of warrants granted or to be granted under the Company's 2000 Employee Performance Equity Plan and 1,982,544 shares are reserved for issuance pursuant to securities (other than the Aggregate Notes, Preferred Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, (ii) 50,000,000 2,347.7745 shares of preferred stock, $.01 par value, of which 7,000,000 shares have been designated as Series C A Junior Participating Preferred Stock, 6,825,780 par value $0.001 per share (the "SERIES A PREFERRED STOCK") all of which which, as of the date hereof, are issued and outstanding, (iii) 300 shares of Series B Preferred Stock, all of which, as of the date hereof, are issued and outstanding, and 30,000,000 have been designated as (iv) 30 shares of Series D B-1 Preferred Stock, 21,841,930.34 all of which which, as of the date hereof, are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(oSCHEDULE 3(R): (i) none of the Company’s share 's nor any of its Subsidiaries' capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Companyencumbrances; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital of the Company or any of its Subsidiaries or options, 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, any share capital of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (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 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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.the

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 150,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which 137,778,964 are issued and outstanding and 12,221,036 shares are reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 2,950,000 shares of preferred stockPreferred Stock, $.01 no par value, of which 7,000,000 none are outstanding. No shares have been designated as Series C Preferred Stock, 6,825,780 of which Common Stock are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstandingheld in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(n) or Schedule 3(o): (i) none None of the Company’s share or the Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Company or the Subsidiary. Except as disclosed in the SEC Documents, 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 or exchangeable for, any share capital stock of the Company or any of its Subsidiariesthe Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries the Subsidiary is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries the Subsidiary or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) the Subsidiary. Except as disclosed in the SEC Documents, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) of the Company or any of its Subsidiaries the Subsidiary or by which the Company or any of its Subsidiaries the Subsidiary is or may become bound; (iv) there . There are no financing statements securing obligations in any material amounts, either singly or in the aggregate, amounts filed in connection with the Company; (v) there Company or the Subsidiary. There are no agreements or arrangements under which the Company or any of its Subsidiaries the Subsidiary is obligated to register the sale of any of their securities under the 1933 Act (except pursuant to the Registration Rights Agreement and the registration rights agreement dated June 21, 2010, by and among Aradigm Corporation and the buyers identified therein, as amended (the “June 2010 Registration Rights Agreement”); (vi) ). Except as disclosed in the SEC Documents, there are no outstanding securities or instruments of the Company or any of its Subsidiaries the Subsidiary 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 the Subsidiary is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there the Subsidiary. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the New Securities; (viii) . Neither the Company does not have nor the Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all . Neither the Company nor the Subsidiary has any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or the Subsidiary’s respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation systemcould not have a Material Adverse Effect. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all Copies of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate Articles of Incorporation”), and the Company’s Bylawsbylaws, as amended and as in effect on the date hereof (the “Bylaws”), have been filed as exhibits with the SEC and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and are available on the material rights of the holders thereof in respect theretoSEC’s website at xxx.xxx.xxx.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 200,000,000 shares of common stock, $.01 par valueof which, 2,693,370 of which are 40,804,189 were issued and outstanding as of December 20, 2018, and 19,023,430 shares are reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, shares of common stock, and (ii) 50,000,000 5,000,000 shares of preferred stock, $.01 par value, of which 7,000,000 shares have been 2,857,143 are designated as Series C B Non-Voting Convertible Preferred Stock, 6,825,780 Stock with all of which are the Series B Non-Voting Preferred Stock issued and outstandingoutstanding as of December 27, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 2018. No shares of which common stock or preferred stock are issued and outstandingheld in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as has been disclosed in Schedule 3(n) or Schedule 3(o): the SEC Documents: (i) none of the Company’s share or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the CompanyCompany or any Subsidiary; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, amounts filed in connection with the CompanyCompany or any of its Subsidiaries; (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 the Registration Rights Agreement)Act, other than agreements with Buyer; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) neither the Company does not have nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall could not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect theretoa Material Adverse Effect.

Equity Capitalization. As of the date hereof, the , (i) The authorized capital stock of the Company consists of (i) 250,000,000 shares of Common Stock and 10,000,000 shares of common stockPreferred Stock, par value $.01 par value, 2,693,370 of which are 0.001 per share. (ii) The issued and outstanding and (ii) 50,000,000 capital stock of the Company consists of 56,974,623 shares of preferred stock, $.01 par value, Common Stock. The shares of which 7,000,000 shares issued and outstanding capital stock of the Company have been designated as Series C Preferred Stockduly authorized and validly issued, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessablenonassessable and have not been issued in violation of or are not otherwise subject to any preemptive or other similar rights. (iii) The Company has reserved 20,719,465 shares of Common Stock for issuance upon the exercise of stock options granted or available for future grant under the Company's stock option plan. (iv) The Company has reserved 2,181,528 shares of Common Stock for purchase under the Company's Employee Stock Purchase Plan. Except as disclosed in Schedule 3(n) or Schedule 3(o): With the exception of the foregoing, there are (i) none of the Company’s share capital is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) there are no outstanding subscriptions, options, warrants, scrip, rights to subscribe to, calls convertible or commitments of any character whatsoever relating to, or exchangeable securities or other rights convertible into, granted to or exercisable by the Company to purchase shares of Common Stock or exchangeable for, any share capital other securities of the Company and there are no commitments, or agreements to issue any shares of Common Stock or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights security convertible into, or exercisable into or exchangeable for, any share capital of the Company or any of its Subsidiariesfor Common Stock; (iiiii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(q)) of the Company or any of its Subsidiaries Subsidiary or by which the Company or any of its Subsidiaries Subsidiary is or may become bound; (iviii) there are no financing statements securing obligations except as set forth in any material amounts, either singly or in the aggregate, filed in connection with Exhibit 10.5 of the Company; (v) 's Form 10-K for the year ended July 31, 2003, there are no agreements or arrangements under which the Company or any of its Subsidiaries Subsidiary is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement); and (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 Subsidiaries; (viiiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 10,000,000 35,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 15,723,767 are issued and outstanding and 1,250,682 shares are reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 10,000,000 shares of preferred stockstock of which, $.01 par valueas of the date hereof, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which none are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(nset forth on Section 3(q) or Schedule 3(o): of the Disclosure Letter, (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Significant Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Significant Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Significant Subsidiaries or options, 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, any share capital stock of the Company or any of its Significant Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (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, whether presently outstanding or securities that may be issued subsequently, under the 1933 Act (except pursuant to the Registration Rights Agreement); (viiv) there are no outstanding securities or instruments of the Company or any of its Significant 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 Significant Subsidiaries is or may become bound to redeem a security of the Company or any of its Significant Subsidiaries; (viiv) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesPurchased Shares; and (viiivi) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all . To the Company’s Knowledge, no stockholder of the Company has entered into any agreement with respect to the voting of equity securities of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished to the Buyer Investor true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto. Section 3(q) of the Disclosure Letter sets forth the shares of Common Stock owned beneficially or of record and Common Stock Equivalents (as defined below) held by each director and executive officer.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (iy) 10,000,000 100,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par valueCommon Stock, of which 7,000,000 as of the date hereof, 19,357,522 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, 1,165,122 shares are reserved for issuance pursuant to the Company's employee incentive plan and 30,000,000 have been designated as Series D Preferred other options and warrants outstanding and 7,894,833 shares are reserved for issuance pursuant to securities (other than the Warrants and the Put Option Agreement) exercisable or exchangeable for, or convertible into, shares of Common Stock, 21,841,930.34 of which are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in set forth on Schedule 3(n) or Schedule 3(o3(r): (i) none no shares of the Company’s share 's capital is stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof3(s)) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 the Registration Rights Agreement)Act; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents (as defined herein) but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options 's or any Subsidiary's respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer upon such Buyer's request, true, correct and complete copies of the Company’s Certificate 's Articles of Incorporation, as amended and as in effect on the date hereof (the “Certificate "Articles of Incorporation”"), and the Company’s 's Bylaws, as amended and as in effect on the date hereof (the “"Bylaws”"), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereofSeptember 30, 2012, the authorized capital stock of the Company consists Issuer consisted of (i) 10,000,000 149,000,000 shares of common stock, $.01 par value, 2,693,370 of which are issued Common Stock and outstanding and (ii) 50,000,000 1,000,000 shares of preferred stock. As of September 30, $.01 par value2012, (a) 87,232,094 shares of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are Common Stock were issued and outstanding; and (b) 14,144,330 shares of Common Stock were reserved for issuance pursuant to outstanding Options or Convertible Securities (including 12,013,648 shares of Common Stock reserved for future grant under equity incentive plans). As of September 30, and 30,000,000 have been designated as Series D Preferred Stock2012, 21,841,930.34 zero shares of which are preferred stock were issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as set forth above in this Section 3.12, or as disclosed in Schedule 3(n) or Schedule 3(o): the SEC Documents: (ia) none of the CompanyIssuer’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; Issuer; (iib) there are no outstanding optionsOptions, warrants, scripConvertible Securities, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, to any share capital stock of the Company or any of its SubsidiariesIssuer, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries Issuer is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital of the Company or any of its Subsidiaries; Issuer; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 material amounts, either singly or in the aggregate, filed in connection with the Company; (vc) there are no agreements or arrangements under which the Company or any of its Subsidiaries Issuer is obligated to register the sale of any of their securities under the 1933 Act Securities Act; (except the Registration Rights Agreement); (vid) there are no outstanding securities or instruments of the Company or any of its Subsidiaries Issuer 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 Issuer is or may become bound to redeem a security of the Company or any of its Subsidiaries; Issuer; (viie) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesWarrants; and (viiif) the Company Issuer does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company Issuer has furnished or made available to the Buyer GE upon GE’s request, true, correct and complete copies of the Company’s Certificate certificate of Incorporation, as amended incorporation and as in effect on bylaws of the date hereof (Issuer and the “Certificate terms of Incorporation”), the Company’s Bylaws, as amended all Options and as in effect on the date hereof (the “Bylaws”), and all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock Convertible Securities and the material rights of the holders thereof in respect thereto.

Equity Capitalization. As of the date hereof, the authorized and issued capital stock of the Company consists is as set forth in the SEC Reports and Section 3.1(q) of (i) 10,000,000 the Disclosure Schedule. No shares of common stock, $.01 par value, 2,693,370 of which Common Stock are issued and outstanding and (ii) 50,000,000 shares of preferred stock, $.01 par value, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are issued and outstandingheld in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessablenon-assessable. Except as disclosed provided in Schedule 3(nthe SEC Reports and on Section 3(q) or Schedule 3(o): of the Disclosure Schedule, (i) none to the Company’s knowledge, no Person owns 10% or more of the Company’s share issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, 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 or in the Amended and Restated Articles of Incorporation without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws); (ii) the Company’s capital is stock and the capital stock of its subsidiaries are not subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the CompanyLiens; (iiiii) 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 or exchangeable for, any share capital stock of the Company or any of its Subsidiariessubsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries subsidiaries is or may become bound to issue additional share capital of the Company or any of its Subsidiaries stock or options, 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, any share capital stock of the Company or any of its Subsidiariessubsidiaries, respectively (other than as may be issued from time to time under any equity incentive plan maintained); (iiiiv) there are no outstanding debt securities, convertible notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) of the Company or any of its Subsidiaries subsidiaries or by which the Company or any of its Subsidiaries subsidiaries is or may become bound; (ivv) there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, amounts filed in connection with the CompanyCompany or any of its subsidiaries; (vvi) there are no agreements or arrangements under which the Company or any of its Subsidiaries subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act (except the Registration Rights Agreementas provided in Section 5(h) hereof); (vivii) there are no outstanding securities or instruments of the Company or any of its Subsidiaries 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 subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiariessubsidiaries; (viiviii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (viiiix) neither the Company does not have nor any of its subsidiaries has stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; (ix) all of the Company’s outstanding options and warrants shall be cancelled at Closing; and (x) no securities of the Company or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicable. The Company has furnished provided to the Buyer a true, correct and complete copies copy of the Company’s Certificate of Incorporation, as amended and charter as in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”)hereof, and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect theretothereof.

Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (ix) 10,000,000 15,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which as of the date hereof, 5,473,519 shares are issued and outstanding outstanding, 685,953 shares are reserved for issuance pursuant to the Company’s employee incentive plans and other options and warrants outstanding, and (iiy) 50,000,000 2,000,000 shares of preferred stock, par value $.01 par value0.01 per share, of which 7,000,000 shares have been designated as Series C Preferred Stock, 6,825,780 of which are issued and outstanding, and 30,000,000 have been designated as Series D Preferred Stock, 21,841,930.34 of which are none is issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed set forth above in Schedule 3(nthis Section 3(o) or on Schedule 3(o3(o)(1): (i) none no shares of the Company’s share capital is stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) there are no the Company has not issued or is a party to any 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 or exchangeable for, any share shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share shares of capital stock of the Company or any of its Subsidiaries or options, 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, any share shares of capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereof) 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 outstanding financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with to cover assets of the Company; (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 the Registration Rights Agreement)Act; (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 Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesCommon 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) all the Company and its Subsidiaries have no liabilities or obligations that are required to be disclosed in the SEC Documents but that were not so disclosed in the SEC Documents prior to the time of filing the Form 15, other than those incurred in the ordinary course of the Company’s outstanding options or any Subsidiary’s respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished or made available to the Buyer upon Buyer’s request, true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto. Schedule 3(o)(2) sets forth (i) the shares of Common Stock owned beneficially or of record by each director and executive officer of the Company and (ii) any rights, warrants or options to subscribe for or purchase any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock and any stock or securities convertible into or exercisable or exchangeable for Common Stock (“Common Stock Equivalents”) held by each director and executive officer of the Company, including, if applicable, the individual and weighted exercise prices of each Common Stock Equivalent, vesting schedules, conditions to vesting and any other material terms thereof.

Equity Capitalization. As of the date hereofFebruary 28, 2007, the authorized capital stock of the Company consists of (i) 10,000,000 300,000,000 shares of common stockCommon Stock, $.01 par value, 2,693,370 of which are as of such date, 40,264,710 were issued and outstanding outstanding, up to 8,000,000 shares were reserved for issuance pursuant to the Company’s stock option and purchase plans and 223,300,000 shares were reserved for issuance pursuant to securities (including the Notes) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 5,000,000 shares of preferred stock, par value $.01 par value0.001 per share, of which 7,000,000 as of such date, 1,000,000 shares have been designated as of Series A Preferred Stock were issued and outstanding, 500,000 shares of Series C Preferred Stock, 6,825,780 of which are Stock were issued and outstanding, and 30,000,000 have been designated as 900 shares of Series D Preferred Stock, 21,841,930.34 of which are Stock were issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in on Schedule 3(n3(m) or Schedule 3(o): as set forth in the SEC Documents filed at least three Business Days prior to the date hereof, (i) none of the Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances Liens suffered or permitted by the Company; (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 or exchangeable for, any share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital stock of the Company or any of its Subsidiaries or options, 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, any share capital stock of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit or loan agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(o) hereofbelow) 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 material amounts, either singly or in the aggregate, filed in connection with the CompanyCompany or any of its Subsidiaries; (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 purchase, repurchase, retire or redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securitiestransactions contemplated hereby; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) all the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in such SEC Documents but not so disclosed in such SEC Documents, other than those incurred in the ordinary course of the Company’s outstanding options or its Subsidiaries’ respective businesses and warrants shall be cancelled at Closing; and (x) no securities of which, individually or in the Company aggregate, do not or PubCo are listed or quoted on any stock exchange or automated quotation system. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), (i) all of the Company’s issued and outstanding stock shall be owned by PubCo and (ii) all other securities issued by the Company (including, without limitation, the Series C Preferred Stock, the Series D Preferred Stock and any securities disclosed in Schedule 3(n)) shall would not have been exchanged for shares of PubCo’s Class A Common Stock (the “Class A Common Stock”), PubCo’s Class B Common Stock (the “Class B Common Stock”), or PubCo’s Common Stock, as applicablea Material Adverse Effect. The Company has furnished to the Buyer each Holder true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), ) not available on the XXXXX system if such Certificate of Incorporation and Bylaws have been requested in writing by such Holder. The terms of all agreements relating to securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect theretothereto are disclosed in the SEC Documents that have been filed at least three Business Days prior to the date of this Agreement.