Common use of Ownership and Status of Capital Stock Clause in Contracts

Ownership and Status of Capital Stock. (a) Section 3.4 of the Disclosure Schedule is a capitalization table that sets forth the capital stock that the Company is authorized to issue, has issued, has outstanding, has reserved for issuance upon conversion of the New Class A Preferred and New Class B Preferred into Common Stock and has reserved for issuance upon the exercise of outstanding options or warrants. All outstanding shares of Common Stock, New Class A Preferred and New Class B Preferred are, and upon issuance and payment therefor in accordance with the terms of this Agreement, all of the outstanding shares of New Class B Preferred to be issued under this Agreement will be, duly authorized, validly issued, fully paid and non-assessable. Upon conversion of any shares of the New B-6 Series of New Class B Preferred issued hereunder, the shares of Common Stock issuable in connection therewith will be duly authorized, validly issued, fully paid and non-assessable. All outstanding shares of capital stock of the Company have been issued in full compliance with applicable laws. No shares of Common Stock, New Class A Preferred or New Class B Preferred are held in the Company’s treasury. The Common Stock, the New Class A Preferred and the New Class B Preferred are not and will not be entitled to cumulative voting rights, preemptive rights, anti-dilution rights and so-called registration rights under the ‘33 Act, except as otherwise provided in this Agreement, the Investment and Recapitalization Agreement dated as of July 14, 2006 (the “2006 Recapitalization Agreement”), the Shareholders Agreement and the Existing Articles, as amended hereunder. The Common Stock, the New Class A Preferred and New Class B Preferred have the preferences, voting powers, qualifications and special or relative rights or privileges set forth in this Agreement, the Shareholders Agreement and the Existing Articles, as amended hereunder. (b) Except as set forth on Section 3.4 of the Disclosure Schedule or as provided to the Investors in this Agreement, there are: (x) no outstanding options, offers, warrants, conversion rights, contracts, or other rights to subscribe for or to purchase from the Company, or contracts obligating the Company to issue, transfer, or sell (whether formal or informal, written or oral, firm or contingent), Common Stock, New Class A Preferred and New Class B Preferred or other capital stock of the Company (whether debt, equity or a combination thereof) or securities convertible into or exchangeable for Common Stock, New Class A Preferred and New Class B Preferred or other capital stock or “phantom” stock or similar interests; and (y) no contracts or other understandings (whether formal or informal, written or oral, firm or contingent) which require or may require the Company to repurchase any shares of its Common Stock. Other than pursuant to a transaction contemplated by, and in accordance with, Section 4.3 of the Disclosure Schedule and Section 4.3 of this Agreement, there is, and immediately upon consummation of the transactions contemplated hereby there will be, no agreement, with respect to the issuance or sale or voting of any shares of capital stock of the Company (whether outstanding or issuable upon conversion or exercise of outstanding securities) except for the offering and sale of shares of New B-6 Series of New Class B Preferred pursuant to this Agreement and the applicable provisions of the Existing Articles, as amended hereunder. The Company has no obligation to register any of its presently outstanding securities or any of its securities which may thereafter be issued under the ‘33 Act.

Ownership and Status of Capital Stock. (a) Section 3.4 4.4 of the Disclosure Schedule is a capitalization table that sets forth the capital stock that the Company is authorized to issue, has issued, is obligated to issue under Sections 3.3 and 3.5 hereof, has outstanding, has reserved for issuance upon conversion of the New Class A Preferred and New Class B Preferred into Common Stock and has reserved for issuance upon the exercise of outstanding options or warrants. All outstanding shares of Common Stock, New Class A Preferred and New Class B Preferred are, and upon issuance and payment therefor in accordance with the terms of this Agreement, all of the outstanding shares of New Class B Preferred to be issued under this Agreement will be, duly authorized, validly issued, fully paid and non-assessable. Upon conversion of any shares of the New B-6 B-1 Series of New Class B Preferred issued hereunder, the shares of Common Stock issuable in connection therewith will be duly authorized, validly issued, fully paid and non-assessable. All outstanding shares of capital stock of the Company have been issued in full compliance with applicable laws. No shares of Common Stock, New Class A Preferred or New Class B Preferred are held in the Company’s treasury. The Common Stock, the New Class A Preferred and the New Class B Preferred are not and will not be entitled to cumulative voting rights, preemptive rights, anti-dilution rights and so-called registration rights under the ‘33 Act, except as otherwise provided in this Agreement, the Investment and Recapitalization Agreement dated as of July 14, 2006 (the “2006 Recapitalization Agreement”), the Shareholders Agreement and the Existing New Articles, as amended hereunder. The Common Stock, the New Class A Preferred and New Class B Preferred have the preferences, voting powers, qualifications and special or relative rights or privileges set forth in this Agreement, the Shareholders Agreement and the Existing New Articles, as amended hereunder. (b) Except as set forth on Section 3.4 4.4 of the Disclosure Schedule or as provided to the Investors in this Agreement, there are: (x) no outstanding options, offers, warrants, conversion rights, contracts, or other rights to subscribe for or to purchase from the Company, or contracts obligating the Company to issue, transfer, or sell (whether formal or informal, written or oral, firm or contingent), Common Stock, New Class A Preferred and New Class B Preferred or other capital stock of the Company (whether debt, equity or a combination thereof) or securities convertible into or exchangeable for Common Stock, New Class A Preferred and New Class B Preferred or other capital stock or “phantom” stock or similar interests; and (y) no contracts or other understandings (whether formal or informal, written or oral, firm or contingent) which require or may require the Company to repurchase any shares of its Common Stock. Other than pursuant to a transaction contemplated by, and in accordance with, Section 4.3 5.3 of the Disclosure Schedule and Section 4.3 5.3 of this Agreement, there is, and immediately upon consummation of the transactions contemplated hereby there will be, no agreement, with respect to the issuance or sale or voting of any shares of capital stock of the Company (whether outstanding or issuable upon conversion or exercise of outstanding securities) except for the offering and sale of shares of New B-6 B-1 Series of New Class B Preferred pursuant to this Agreement and the Irrevocable Subscription Agreement and the applicable provisions of the Existing New Articles, as amended hereunder. The Company has no obligation to register any of its presently outstanding securities or any of its securities which may thereafter be issued under the ‘33 Act.

Ownership and Status of Capital Stock. (a) Section 3.4 of the Disclosure Schedule is a capitalization table that sets forth the capital stock that the Company TOG is authorized to issue, has issued, is obligated to issue under Section 2.8 hereof hereof, has outstanding, has reserved for issuance upon conversion of the New Class A Preferred and New Class B Preferred into Common Stock TOG’s common stock and has reserved for issuance upon the exercise of outstanding options or warrants. All outstanding shares of Common StockTOG common stock, New Class A Preferred and New Class B Preferred are, and upon issuance and payment therefor in accordance with the terms of this Agreement, all of the outstanding shares of New Class B Preferred when issued pursuant to be issued under this Agreement will be, duly authorized, validly issued, fully paid and non-assessable. Upon conversion of any shares of the New B-6 Series of New Class B Preferred issued hereunderSection 2.8 hereof, the shares of Common TOG Stock issuable in connection therewith will be shall be, duly authorized, validly issued, fully paid and non-assessable. All outstanding shares of capital stock of TOG have been, and when issued pursuant to Section 2.8 hereof, the Company shares of TOG Stock shall have been been, issued in full compliance with applicable laws. No shares of Common StockTOG’s common stock, New Class A Preferred or New Class B Preferred are held in the CompanyTOG’s treasury. The Common StockTOG’s common stock, the New Class A Preferred and the New Class B Preferred are not and will not be entitled to cumulative voting rights, preemptive rights, anti-dilution rights and so-called registration rights under the ‘33 Securities Act, except as otherwise provided in this Agreement, the Investment and Recapitalization Agreement Agreement, dated as of July 14, 2006 relating to TOG’s most current equity round (the “2006 Recapitalization Investment Agreement”), the Shareholders Agreement and the Existing ArticlesTOG’s Third Amended and Restated Articles of Incorporation. TOG’s common stock, as amended hereunder. The Common Stock, the New Class A Preferred and New Class B Preferred have the preferences, voting powers, qualifications and special or relative rights or privileges set forth in this Agreement, the Investment Agreement, the Shareholders Agreement and the Existing Articles, as amended hereunder. (b) TOG’s Third Amended and Restated Articles of Incorporation. Except as set forth on Section 3.4 4.4 of the Disclosure Schedule or as provided to the Investors in this AgreementSchedule, there are: (x) no outstanding options, offers, warrants, conversion rights, contracts, or other rights to subscribe for or to purchase from the CompanyTOG, or contracts obligating the Company TOG to issue, transfer, or sell (whether formal or informal, written or oral, firm or contingent), Common StockTOG’s common stock, New Class A Preferred and New Class B Preferred or other capital stock of the Company TOG (whether debt, equity or a combination thereof) or securities convertible into or exchangeable for Common StockTOG’s common stock, New Class A Preferred and New Class B Preferred or other capital stock or “phantom” stock or similar interests; and (y) no contracts or other understandings (whether formal or informal, written or oral, firm or contingent) which require or may require the Company TOG to repurchase any shares of its Common Stockcommon stock. Other than pursuant to a transaction contemplated by, and in accordance with, Section 4.3 of the Disclosure Schedule and Section 4.3 of this Agreement, there is, and immediately upon consummation of the transactions contemplated hereby there will be, no agreement, with respect to the issuance or sale or voting of any shares of capital stock of the Company (whether outstanding or issuable upon conversion or exercise of outstanding securities) except for the offering and sale of shares of New B-6 Series of New Class B Preferred pursuant to this Agreement and the applicable provisions of the Existing Articles, as amended hereunder. The Company TOG has no obligation to register any of its presently outstanding securities or any of its securities which may thereafter be issued under the ‘33 Securities Act.