Common use of Capital Stock and Related Matters Clause in Contracts

Capital Stock and Related Matters. (i) As of the Closing and immediately thereafter, the authorized capital stock of the Company shall consist of 132,478,190.969 shares of Stock, of which 179,745.677 shares shall be designated as Preferred Stock (134,845.633 of which shall be issued and outstanding and 44,900.044 of which shall be reserved for issuance pursuant to Section 1B(ii)), and of which 132,298,445.292 shares shall be designated as Common Stock (97,000,000 of which shall be issued and outstanding, and 3,000,000 of which shall be reserved for issuances pursuant to the Option Plan, and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii)). As of the Closing, the Company shall not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and as contemplated by this Agreement. As of the Closing, the Company shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except pursuant to this Agreement and the Company’s Certificate of Incorporation. As of the Closing, all of the outstanding shares of the Company’s capital stock shall be validly issued, fully paid and nonassessable. (ii) There are no statutory or, to the best of the Company’s knowledge, contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Stock hereunder or the issuance of the Stock pursuant to Section 1B, except as expressly contemplated in the Stockholders Agreement or provided herein. Based in part on the investment representations of the Purchaser in Section 7C hereof, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Stock hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s knowledge, there are no agreements between the Company’s stockholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs, except for the Stockholders Agreement, the Senior Management Agreements and the Registration Agreement.

Capital Stock and Related Matters. (i) As of Immediately prior to the Closing and immediately thereafterClosing, the authorized capital stock of the Company shall consist of 132,478,190.969 (a) 1,000,000 shares of preferred stock, of which no shares shall be outstanding (but certain of which are contemplated to be issued and outstanding pursuant to the class and derivative action settlement agreement) and (b) 10,000,000 shares of Common Stock, of which 179,745.677 5,700,725 shares shall be designated as Preferred Stock (134,845.633 of which shall be issued and outstanding and 44,900.044 of which shall be reserved for issuance pursuant to Section 1B(ii)), and of which 132,298,445.292 shares shall be designated as Common Stock (97,000,000 of which shall be issued and outstanding, and 3,000,000 of which shall be reserved for issuances pursuant to the Option Plan, and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii)). As of the Closing, the Company shall not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and as contemplated by this Agreement. As of the Closing, the Company shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stockplans, except pursuant to this Agreement and as set forth on the Company’s Certificate of Incorporation. attached "Capitalization Schedule." As of the Closing, all of the outstanding shares of the Company’s 's capital stock stock, including the Preferred Stock, shall be validly issued, fully paid and nonassessable. (ii) There are no statutory or, to the best of the Company’s knowledge, or contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Stock hereunder or Securities hereunder. Assuming the issuance of the Stock pursuant to Section 1B, except as expressly contemplated in the Stockholders Agreement or provided herein. Based in part on the investment representations of the Purchaser in Section 7C hereof6 are accurate, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the shares of Preferred Stock hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s knowledge, there are no agreements between the Company’s stockholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs, except for the Stockholders Agreement, the Senior Management Agreements and the Registration Agreement.

Capital Stock and Related Matters. (i1) As of Immediately prior to the Closing and immediately thereafterClosing, the authorized capital stock of the Company shall consist of 132,478,190.969 (a) 400,000,000.00 shares of Common Stock, of which 179,745.677 74,985,784.83 shares shall be designated as Preferred Stock issued and outstanding; (134,845.633 b) 350,000.00 shares of Series A Preferred, of which 337,582.50 shares shall be issued and outstanding, (c) 142,500.00 shares of Series B Preferred, of which 98,285.56657 shares shall be issued and outstanding and 44,900.044 (d) 7,500.00 shares of Series C Preferred, of which shall be reserved for issuance pursuant to Section 1B(ii)), and of which 132,298,445.292 5,172.92456 shares shall be designated as Common Stock (97,000,000 of which shall be issued and outstanding, outstanding (and 3,000,000 convertible into 258,646,228 shares of which shall be reserved for issuances pursuant Common Stock). The attached Capitalization Schedule sets forth the ownership of the Company immediately prior to the Option Plan, and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii))Closing. As of the Closing, the Company shall not have outstanding (or any commitments to issue) any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and plans, except as set forth on the attached Capitalization Schedule or as contemplated by this AgreementAgreement or the Proposed Terms of Restructuring. As of the Closing, the Company shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except pursuant to the Executive Stock Agreements and the Investor Rights Agreement or as contemplated by this Agreement and or the Company’s Certificate Proposed Terms of IncorporationRestructuring. As of the Closing, all All of the outstanding shares of the Company’s 's capital stock are, and as of the Closing shall be be, validly issued, fully paid and nonassessable. (ii2) There are no statutory or, to the best of the Company’s 's actual knowledge, contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Stock Purchased Equity hereunder or the issuance any other capital stock or other securities of the Stock pursuant to Section 1BCompany, except as expressly contemplated set forth in the Stockholders Agreement or provided hereinInvestor Rights Agreement. Based in part on upon the investment representations and warranties of the Purchaser in Section 7C hereofPurchasers set forth herein, and to the Company's knowledge, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stockstock or other securities, and the offer, sale and issuance of the Stock Purchased Equity hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s 's actual knowledge, there are no agreements between the Company’s 's stockholders with respect to the voting or transfer of the Company’s 's capital stock or with respect to any other aspect of the Company’s 's affairs, except for the Stockholders Agreement, Investor Rights Agreement and Executive Stock Agreements. The Company has not granted any registration rights other than under the Senior Management Agreements and the Registration Investor Rights Agreement.

Capital Stock and Related Matters. (i1) As of Immediately prior to the Closing and immediately thereafterClosing, the authorized capital stock of the Company shall consist of 132,478,190.969 (a) 400,000,000.00 shares of Common Stock, of which 179,745.677 70,839,784.83 shares shall be designated as Preferred Stock issued and outstanding; (134,845.633 b) 350,000.00 shares of Series A Preferred, of which 329,127.50 shares shall be issued and outstanding, (c) 142,500.00 shares of Series B Preferred, of which 104,080.57 shares shall be issued and outstanding and 44,900.044 (d) 7,500.00 shares of Series C Preferred, of which shall be reserved for issuance pursuant to Section 1B(ii)), and of which 132,298,445.292 5,477.92 shares shall be designated as Common Stock (97,000,000 of which shall be issued and outstanding, and 3,000,000 . The attached Capitalization Schedule sets forth the ownership of which shall be reserved for issuances pursuant the Company immediately prior to the Option Plan, and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii))Closing. As of the Closing, the Company shall not have outstanding (or any commitments to issue) any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and plans, except as set forth on the attached Capitalization Schedule or as contemplated by this AgreementAgreement or the Proposed Terms of Restructuring. As of the Closing, the Company shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except pursuant to the Executive Stock Agreements and the Investor Rights Agreement or as contemplated by this Agreement and or the Company’s Certificate Proposed Terms of IncorporationRestructuring. As of the Closing, all All of the outstanding shares of the Company’s 's capital stock are, and as of the Closing shall be be, validly issued, fully paid and nonassessable. (ii2) There are no statutory or, to the best of the Company’s 's actual knowledge, contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Stock Purchased Equity hereunder or the issuance any other capital stock or other securities of the Stock pursuant to Section 1BCompany, except as expressly contemplated set forth in the Stockholders Agreement or provided hereinInvestor Rights Agreement. Based in part on upon the investment representations and warranties of the Purchaser in Section 7C hereofPurchasers set forth herein, and to the Company's knowledge, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stockstock or other securities, and the offer, sale and issuance of the Stock Purchased Equity hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s 's actual knowledge, there are no agreements between the Company’s 's stockholders with respect to the voting or transfer of the Company’s 's capital stock or with respect to any other aspect of the Company’s 's affairs, except for the Stockholders Agreement, Investor Rights Agreement and Executive Stock Agreements. The Company has not granted any registration rights other than under the Senior Management Agreements and the Registration Investor Rights Agreement.

Capital Stock and Related Matters. (i) As of the Closing and immediately thereafter, the authorized capital stock of the Company shall consist of 132,478,190.969 (a) 50,000 shares of Stockpreferred stock, of which 179,745.677 20,000 shares shall be designated as Series A 10% Senior Cumulative Preferred Stock (134,845.633 of which shall be issued and outstanding and 44,900.044 of which shall be reserved for issuance pursuant to Section 1B(ii))Stock, and of which 132,298,445.292 shares shall be designated as Common Stock (97,000,000 16,230 of which shall be issued and outstanding, and 3,000,000 30,000 shares shall be designated as Series A-2 10% Senior Cumulative Preferred Stock, 22,869 of which shall be reserved for issuances pursuant to the Option Planissued and outstanding, and 32,298,445.292 (b) 500,000 shares of Common Stock, of which 296,302 shares shall be issued and outstanding, 54,551 shares shall be reserved for issuance pursuant in connection with the Management Option Pool subsequent to Section 1B(ii))the Closing. As of the Closing and immediately thereafter, the stockholders of the Company shall be as set forth in the "Capitalization Schedule" hereto. (ii) As of the Closing, neither the Company nor any Subsidiary shall not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant plans, except as set forth on the attached Capitalization Schedule or as provided in this Agreement or the Subscription Agreement. The Capitalization Schedule accurately sets forth the following information with respect to all outstanding options and as contemplated by this Agreementrights to acquire the Company's capital stock: the holder, the number of shares covered, the exercise price and the expiration date. As of the Closing, neither the Company nor any Subsidiary shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except as provided in the Amended Stockholders Agreement, as set forth on the Capitalization Schedule, pursuant to this Agreement the Certificate of Designation and the Company’s Certificate of IncorporationIncorporation (as amended by the Certificate of Amendment), pursuant to Section 7 of the First Purchase Agreement or pursuant to Section 6 of this Agreement. As of the Closing, all of the outstanding shares of the Company’s 's capital stock shall be validly issued, fully paid and nonassessable. (iiiii) There are no statutory or, to the best of the Company’s knowledge, or contractual stockholders stockholders' preemptive rights or rights of refusal with respect to the issuance of the Stock hereunder or the issuance of the Stock pursuant to Section 1B, except as expressly contemplated in the Stockholders Agreement or provided hereinhereunder. Based in part on the investment representations of the Purchaser in Section 7C hereof, the The Company has and its Subsidiaries have not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its their capital stock, and the offer, sale and issuance of the Stock hereunder and pursuant to Section 1B hereof do not and will does not require registration under the Securities Act or any applicable state securities laws. To Except as set forth on the Capitalization Schedule and pursuant to the Amended Stockholders Agreement, to the best of the Company’s 's knowledge, there are no agreements between the Company’s stockholders of the Company or its Subsidiaries with respect to the voting or transfer of the Company’s capital stock of the Company or its Subsidiaries or with respect to any other aspect of the Company’s affairs, except for affairs of the Stockholders AgreementCompany or its Subsidiaries. (iv) As of the Closing, the Senior Management Agreements outstanding capital stock of UTS shall consist of (a) 1,000,000 shares of common stock, of which the Company owns 501,000 shares and (b) 2,025 shares of preferred stock, of which the Company owns 2,025 shares. The Company paid an aggregate of $2,000,000 in exchange for all such shares held as of the Closing. The Company has the right, but is not obligated, to purchase additional shares of UTS common stock and preferred stock, at a price of $1,000 for units ("Units") each comprised of one share of preferred stock and 250 shares of UTS common stock. The Company and UTS are parties to an agreement pursuant to which the Company has agreed to purchase from UTS and UTS has agreed to sell to the Company Units of additional UTS common stock and UTS preferred stock in exchange for an aggregate purchase price of $1,350,000. Such purchase agreement, and the Registration Agreementtransactions contemplated thereby, have been approved by the board of directors and stockholders of UTS, and the sale of stock contemplated thereby will be consummated at such time as such sale has been approved by the New York Public Service Commission (the "NYPSC"). As of the Closing, in addition to the $1,350,000 advanced pursuant to such purchase agreement, the Company has advanced an aggregate $1,800,000 to UTS, evidenced by promissory notes issued by UTS and which amounts the Company may, at its sole discretion, convert into Units at the price indicated above (subject only to the prior approval thereof by the NYPSC).

Capital Stock and Related Matters. (ia) As of the Closing and immediately thereafter, the authorized capital stock of the Company shall consist of 132,478,190.969 10,000 shares which will be designated as Preferred Stock and 108,150 shares of Common Stock, of which 179,745.677 77,350 shares shall be designated as Preferred Stock (134,845.633 of which Class A Common Stock, 15,500 shares shall be issued and outstanding and 44,900.044 of which shall be reserved for issuance pursuant to Section 1B(ii))designated Class B Common Stock, and of which 132,298,445.292 7650 shares shall be designated as Class C Common Stock (97,000,000 of which and 7650 shares shall be issued and outstanding, and 3,000,000 of which shall be reserved for issuances pursuant to the Option Plan, and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii))designated as Class D Common Stock. As of the Closing, the Company shall not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and as contemplated by this Agreement, the Purchase Agreements, the Stockholders Agreement and the Company's Certificate of Incorporation. As of the Closing, the Company shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except pursuant to this Agreement, the Stockholders Agreement and the Company’s Certificate of IncorporationPurchase Agreements. As of the Closing, all of the outstanding shares of the Company’s 's capital stock shall be validly issued, fully paid and nonassessable. (iib) There are no statutory or, to the best of the Company’s knowledge, or contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Common Stock hereunder or the issuance of the Stock pursuant to Section 1Bhereunder, except as expressly contemplated provided herein and in the Stockholders Agreement or provided hereinAgreement. Based in part on the investment representations of the Purchaser in Section 7C hereof, the The Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Common Stock hereunder and pursuant to Section 1B hereof this Agreement do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s knowledge, there are no agreements between the Company’s stockholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs, except for the Stockholders Agreement, the Senior Management Agreements and the Registration AgreementActs.

Capital Stock and Related Matters. (i) As of the Closing and immediately thereafter, the authorized capital stock of the Company shall consist of 132,478,190.969 (a) 120,000,000 shares of Common Stock, of which 179,745.677 76,049,301.77 shares shall be designated as issued and outstanding; (b) 350,000 shares of Series A Preferred Stock (134,845.633 Stock, of which 337,582.50 shares shall be issued and outstanding, (c) 142,500 shares of Series B Preferred Stock, of which 84,985.56657 shares shall be issued and outstanding and 44,900.044 (d) 7,500 shares of Series C Preferred Stock, of which shall be reserved for issuance pursuant to Section 1B(ii)), and of which 132,298,445.292 4,472.92456 shares shall be designated as Common Stock (97,000,000 of which shall be issued and outstanding, . The attached Capitalization Schedule sets forth the ownership of the Company as of and 3,000,000 of which shall be reserved for issuances pursuant to ----------------------- immediately after the Option Plan, and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii))Closing. As of the Closing, the Company shall not have outstanding (or any commitments to issue) any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and plans, except as contemplated by this Agreementset forth on the attached Capitalization Schedule. As of the Closing, the ----------------------- Company shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, stock except pursuant to this Agreement the Executive Stock Agreements and the Company’s Certificate of IncorporationInvestor Rights Agreement. As of the Closing, all All of the outstanding shares of the Company’s 's capital stock are, and as of the Closing shall be be, validly issued, fully paid and nonassessable. (ii) There are no statutory or, to the best of the Company’s 's actual knowledge, contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Purchased Stock hereunder or the issuance any other capital stock or other securities of the Stock pursuant to Section 1BCompany, except as expressly contemplated set forth in the Stockholders Agreement or provided hereinInvestor Rights Agreement. Based in part on upon the investment representations and warranties of the Purchaser in Section 7C hereofPurchasers set forth herein, and to the Company's knowledge, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stockstock or other securities, and the offer, sale and issuance of the Purchased Stock hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s 's actual knowledge, there are no agreements between the Company’s 's stockholders with respect to the voting or transfer of the Company’s 's capital stock or with respect to any other aspect of the Company’s 's affairs, except for the Stockholders Agreement, Investor Rights Agreement and Executive Stock Agreements between the Senior Management Agreements Company and certain of its executives. The Company has not granted any registration rights other than under the Registration Investor Rights Agreement.

Capital Stock and Related Matters. (i) As of the Recapitalization Closing and immediately thereafter, the authorized capital stock of the Company shall consist of 132,478,190.969 (a) 50,000 shares of Stockpreferred stock, of which 179,745.677 20,000 shares shall be designated as Series A 10% Senior Cumulative Preferred Stock (134,845.633 of which shall be issued and outstanding and 44,900.044 of which shall be reserved for issuance pursuant to Section 1B(ii))Stock, and of which 132,298,445.292 shares shall be designated as Common Stock (97,000,000 16,200 of which shall be issued and outstanding, and 3,000,000 30,000 shares shall be designated as Series A-2 10% Senior Cumulative Preferred Stock, 26,235 of which shall be issued and outstanding, and (b) 500,000 shares of Common Stock, of which 423,896 shares shall be issued and outstanding, and 54,551 shares of which shall be reserved for issuances pursuant issuance in connection with the Management Option Pool subsequent to the Option Plan, and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii))Recapitalization Closing. As of the Recapitalization Closing and immediately thereafter, the Company's issued and outstanding capital stock will be held by the Persons and in the amounts as set forth in the "Capitalization Schedule" hereto. (ii) As of the Recapitalization Closing, neither the Company nor any Subsidiary shall not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and plans, except as contemplated by set forth on the attached Capitalization Schedule or as provided in this Agreement. The Capitalization Schedule accurately sets forth the following information with respect to all outstanding options and rights to acquire the Company's capital stock: the holder, the number of shares covered, the exercise price and the expiration date. As of the Recapitalization Closing, neither the Company nor any Subsidiary shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except as provided in the Amended Stockholders Agreement, as set forth on the Capitalization Schedule, pursuant to this Agreement the Certificate of Designation and the Company’s Certificate of IncorporationIncorporation (as amended by the Amended Certificate of Designation), pursuant to Section 7 of the First Purchase Agreement or pursuant to Section 6 of this Agreement. As of the Recapitalization Closing, all of the outstanding shares of the Company’s 's capital stock shall be validly issued, fully paid and nonassessable. (iiiii) There are no statutory or, to the best of the Company’s knowledge, or contractual stockholders stockholders' preemptive rights or rights of refusal with respect to the issuance of the Stock hereunder or the issuance of the Stock pursuant to Section 1B, except as expressly contemplated in the Stockholders Agreement or provided hereinhereunder. Based in part on the investment representations of the Purchaser in Section 7C hereof, the The Company has and its Subsidiaries have not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its their capital stock, and the offer, sale and issuance of the Stock hereunder and pursuant to Section 1B hereof do not and will does not require registration under the Securities Act or any applicable state securities laws. To Except as set forth on the Capitalization Schedule and pursuant to the Stockholders Agreement, to the best of the Company’s 's knowledge, there are no agreements between the Company’s stockholders of the Company or its Subsidiaries with respect to the voting or transfer of the Company’s capital stock of the Company or its Subsidiaries or with respect to any other aspect of the Company’s affairs, except for affairs of the Stockholders Agreement, the Senior Management Agreements and the Registration AgreementCompany or its Subsidiaries.

Capital Stock and Related Matters. (i) As of the Closing and immediately thereafter, the authorized capital stock of the Company shall will consist of 132,478,190.969 (A) 100,000 shares of StockPreferred, of which 179,745.677 27,439.64 shares shall be designated as Preferred Stock (134,845.633 of which shall be issued and outstanding and 44,900.044 of which shall be reserved for issuance pursuant to Section 1B(ii)), and of which 132,298,445.292 shares shall be designated as Common Stock (97,000,000 of which shall will be issued and outstanding, and 3,000,000 (B) 6,000,000 shares of Common, of which shall 615,174.37 shares will be reserved for issuances pursuant to the Option Plan, issued and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii))outstanding. As of the Closing, the Company shall will not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation featuresstock, nor shall will it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and stock, except as contemplated by this described in the Equity Purchase Agreement. As of the Closing, the Company shall will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except pursuant to this Agreement its Charter and the Company’s Certificate Management Agreements with each of Incorporation. As of the ClosingRoge▇ ▇▇▇▇▇▇ ("BALL▇▇"), all of the outstanding shares of the Company’s capital stock shall be validly issued, fully paid and nonassessable.Raym▇▇▇ ▇▇▇▇▇ ("▇EWI▇") ▇nd Walt▇▇ ▇▇▇▇▇▇ (ii) There Except as provided in the Equity Purchase Agreement, there are no statutory or, to the best of the Company’s knowledge, or contractual stockholders shareholders preemptive rights or rights of refusal with respect to the issuance of the Stock hereunder or the issuance of the Stock pursuant to Section 1B, except as expressly contemplated in the Stockholders Agreement or provided hereinhereunder. Based in part on the investment representations of the Purchaser Purchasers in Section 7C hereof5 above, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stockthe Stock, and the offer, sale and issuance of the Stock hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s 's knowledge, there are no agreements between among the Company’s 's stockholders with respect to the voting or transfer of the Company’s 's capital stock or with respect to any other aspect of the Company’s affairs, except for 's affairs other than the Stockholders Equity Purchase Agreement, the Senior Shareholders Agreement, the Registration Agreement or the Management Agreements and the Registration Agreementwith Ball▇▇, ▇▇▇▇▇ ▇▇▇ Berm▇▇.

Capital Stock and Related Matters. (i) As of the Closing Date, and immediately thereafterafter giving effect to the transactions contemplated hereby and pursuant to the Related Documents, the authorized capitalization of Holdings and each of its Subsidiaries is set forth on Schedule 5C. All issued and outstanding shares of Holdings and the Company shall have been duly and validly issued, fully paid and non-assessable and no shares of capital stock of Holdings will be owned or held by or for the Company shall consist account of 132,478,190.969 shares Holdings or any of Stockits Subsidiaries. Except as set forth on Schedule 5C hereto, (i) neither Holdings nor any of which 179,745.677 shares shall be designated as Preferred Stock (134,845.633 of which shall be issued and outstanding and 44,900.044 of which shall be reserved for issuance pursuant to Section 1B(ii)), and of which 132,298,445.292 shares shall be designated as Common Stock (97,000,000 of which shall be issued and outstanding, and 3,000,000 of which shall be reserved for issuances pursuant to the Option Plan, and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii)). As of the Closing, the Company shall not its Subsidiaries will have outstanding any stock or securities convertible into or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights (either preemptive or options other) to subscribe for or to purchase, or any options for the purchase its of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any other character relating to the issuance of, any capital stock stock, or any stock or securities convertible into or exchangeable for its any capital stock or and (ii) neither Holdings nor any stock appreciation rights or phantom stock plans other than pursuant to and as contemplated by this Agreement. As of the Closing, the Company shall not its Subsidiaries will be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, warrants or options or other rights to acquire purchase shares of its capital stock, except pursuant . Neither Holdings nor any of its Subsidiaries (i) is a party to any agreement (other than this Agreement and the Company’s Certificate Shareholder Agreement) restricting the transfer of Incorporation. As of the Closing, all of the outstanding any shares of the Company’s its capital stock shall be validly issued, fully paid and nonassessable. except as set forth on Schedule 5C hereto or (ii) There are no statutory orwill have filed or be required to file, to the best of the Company’s knowledge, contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Stock hereunder or the issuance of the Stock pursuant to Section 1B, except as expressly contemplated in the Stockholders Agreement or provided herein. Based in part on the investment representations 12 of the Purchaser in Section 7C hereofExchange Act, the Company has not violated a registration statement relating to any applicable federal class of debt or state equity securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance as of the Stock hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s knowledge, there are no agreements between the Company’s stockholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs, except for the Stockholders Agreement, the Senior Management Agreements and the Registration Agreementdate hereof.

Capital Stock and Related Matters. (i) As of the Closing and immediately thereafter, the authorized capital stock of the Company shall consist of 132,478,190.969 107,300,000 shares of Stock, of which 179,745.677 7,200,000 shares shall be designated as Preferred Stock Class A Convertible Preferred, par value $.001 per share (134,845.633 of which the "CLASS A CONVERTIBLE PREFERRED" and collectively with the Class B Convertible Preferred, the "CONVERTIBLE PREFERRED"), 100,000 shall be issued and outstanding and 44,900.044 of which shall be reserved for issuance pursuant to Section 1B(ii))designated as Class B Convertible Preferred, and of which 132,298,445.292 100,000,000 shares shall be designated as Common Stock, par value $.001 per share (the "COMMON STOCK"). Each of the outstanding shares of Class A Convertible Preferred and each of the shares of Class B Convertible Preferred is convertible into four shares of Common Stock (97,000,000 and as of which shall be issued and outstandingFebruary 13, and 3,000,000 1998, there were 1,797,942 shares of which shall be reserved for issuances pursuant Common Stock that are subject to stock options granted under the Company's 1997 Stock Option Plan, and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii)). As of the Closing, except as contemplated hereby, and as disclosed in the Loan Agreement, the Company shall not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and as contemplated by this AgreementAgreement and the Management Agreements, as set forth on the Capitalization Schedule attached hereto as Schedule 5B hereto and in connection with additional options ----------- which were issued (and subsequently exercised) to Golder, Thoma, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Fund V, L.P. or its affiliates and MG Capital Partners II, L.P. or its affiliates. As of the Closing, the Company shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except pursuant to this Agreement Agreement, the Restated Articles of Incorporation and the Company’s Certificate of IncorporationManagement Agreements. As of the Closing, all of the outstanding shares of the Company’s 's capital stock shall be validly issued, fully paid and nonassessable. (ii) There are no statutory or, to the best of the Company’s 's knowledge, contractual stockholders shareholders preemptive rights or rights of refusal with respect to the issuance of the Stock hereunder or the issuance of the Stock pursuant to Section 1Bhereunder, except as expressly contemplated provided herein and as disclosed in the Stockholders Agreement or provided hereinLoan Agreement. Based in part on the investment representations of the Purchaser in Section paragraph 7C hereofhereof and of the employees of the Company in their employment agreements, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Stock hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s 's knowledge, there are no agreements between the Company’s stockholders 's shareholders with respect to the voting or transfer of the Company’s 's capital stock or with respect to any other aspect of the Company’s 's affairs, except for the Stockholders Shareholders Agreement, restricted securities agreements with the Senior Management Agreements executives of the Company, restricted stock agreements and option agreements with other employees of the Company, other arrangements with certain equity holders of the Company, and the Registration AgreementManagement Agreements.

Capital Stock and Related Matters. (ia) As of the Closing and immediately thereafter, the authorized capital stock of the Company shall consist of 132,478,190.969 3,000,000 shares of Stock, of which 179,745.677 (i) 100,000 shares shall be designated as Series A Preferred Stock (134,845.633 Stock, 69,428.898 shares of which shall be issued and outstanding pursuant to this Agreement and 44,900.044 1,571.102 shares of which shall be reserved for issuance pursuant to Section 1B(ii))upon exercise of the Preferred Stock Options, (ii) 100,000 shares of which are undesignated preferred stock, none of which are outstanding as of the Closing, and of which 132,298,445.292 (iii) 2,800,000 shares shall be designated as Common Stock Stock, (97,000,000 A) 1,440,000 shares of which shall be issued and outstandingoutstanding pursuant to this Agreement and the Management Agreements with the Executives, (B) 22,800 shares of which shall be issued and 3,000,000 outstanding to other management employees of the Company, (C) 37,200 shares of which shall be reserved for issuances pursuant issuance to additional executives or management employees of the Option PlanCompany or its Subsidiaries, and 32,298,445.292 (D) 95,745 shares of which shall be reserved for issuance pursuant to Section 1B(ii))upon the exercise of the Warrants. As of the Closing, the Company shall not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and as contemplated by this AgreementAgreement and the Management Agreements. As of the Closing, the Company shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except pursuant to this Agreement, the Stockholders Agreement and the Company’s Certificate of IncorporationManagement Agreements. As of the Closing, all of the outstanding shares of the Company’s 's capital stock shall be validly issued, fully paid and nonassessable. (iib) There are no statutory or, to the best of the Company’s 's knowledge, contractual stockholders stockholders' preemptive rights or rights of refusal with respect to the issuance of the Stock hereunder or the issuance of the Stock pursuant to Section 1B1.02 hereof, except as expressly contemplated in the Stockholders Agreement or provided herein. Based in part on the investment representations of the Purchaser Purchasers in Section 7C hereof6.03 hereof and of each of the Executives in Section 1(c) of their respective Management Agreements, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Stock hereunder and pursuant to Section 1B 1.02 hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s 's knowledge, there are no agreements between the Company’s 's stockholders with respect to the voting or transfer of the Company’s 's capital stock or with respect to any other aspect of the Company’s 's affairs, except for the Stockholders Agreement, the Senior Management Agreements Agreement and the Registration Management Agreement.

Capital Stock and Related Matters. (i) As of the Closing and immediately thereafter, the The authorized capital stock of the Company shall consist consists of 132,478,190.969 150 million shares of Stockcapital stock, all of which 179,745.677 shares shall be designated as Preferred Stock (134,845.633 of which shall be issued and outstanding and 44,900.044 of which shall be reserved for issuance pursuant to Section 1B(ii)), and of which 132,298,445.292 shares shall be are designated as Common Stock (97,000,000 of which shall be issued and outstanding, and 3,000,000 of which shall be reserved for issuances pursuant par value $.00001 per share. Immediately prior to the Option Plan, and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii)). As of the Initial Closing, the Company shall had 14,411,675 shares of Common Stock issued and outstanding. All of the outstanding shares of all classes of capital stock and all securities exercisable for or convertible into any ownership interest in the Company, and any arrangement pursuant to which any ownership interest in the Company may be obtained are owned of record by the parties and in the numbers specified in Exhibit J hereto. --------- Except for (i) such issued and outstanding shares; (ii) the rights or securities specified in the preceding sentence (and Exhibit J); and (iii) --------- 8,000,000 shares of common stock reserved for issuance for employee options pursuant to the Company's Option Plan, of which no options are currently granted; the Company does not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall does it have outstanding any rights rights, arrangements or options to subscribe for for, receive or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to to, and as contemplated by by, this Agreement. As No stock plan, stock purchase, stock option or other agreement or understanding between the Company and any holder of any equity securities of the Closing, Company or rights to purchase equity securities of the Company shall provides for acceleration or other changes in the vesting provisions or other terms of such securities, as the result of any merger, sale of stock or assets, change in control or other similar transaction by the Company. The Company is not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options options, or other rights to acquire its capital stock, except pursuant to this Agreement and the Company’s Certificate of IncorporationAgreement. As of the Closing, all All of the outstanding shares of the Company’s 's capital stock are and shall be validly issued, fully paid paid, and nonassessable. (ii) There are no statutory or, to the best of the Company’s knowledge, or contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Stock hereunder or the issuance any of the Stock pursuant to Section 1Bhereunder, except as expressly contemplated provided herein, and as expressly provided in the Stockholders Agreement or provided hereinand the Registration Agreement. Based in part on the investment representations of the Purchaser in Section 7C 6B hereof, the Company has not violated any applicable ---------- federal or state securities laws in connection with the offer, sale sale, or issuance of any of its capital stock, and the offer, sale sale, and issuance of the Stock hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To Except for the best of Stockholders Agreement and the Company’s knowledgeRegistration Agreement, there are no agreements between the Company’s 's stockholders with respect to the voting or transfer of the Company’s 's capital stock or with respect to any other aspect of the management of the Company’s 's affairs, except for the Stockholders Agreement, the Senior Management Agreements and the Registration Agreement.

Capital Stock and Related Matters. (i) As of the Closing and immediately thereafter, the authorized capital stock of the Company shall consist of 132,478,190.969 (a) 120,000,000 shares of Common Stock, of which 179,745.677 76,049,301.77 shares shall be designated as issued and outstanding; (b) 350,000 shares of Series A Preferred Stock (134,845.633 Stock, of which 337,582.50 shares shall be issued and outstanding, (c) 142,500 shares of Series B Preferred Stock, of which 70,735.56657 shares shall be issued and outstanding and 44,900.044 (d) 7,500 shares of Series C Preferred Stock, of which shall be reserved for issuance pursuant to Section 1B(ii)), and of which 132,298,445.292 3,722.92456 shares shall be designated as Common Stock (97,000,000 of which shall be issued and outstanding, . The attached Capitalization Schedule sets forth the ownership of the Company as of and 3,000,000 of which shall be reserved for issuances pursuant to immediately after the Option Plan, and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii))Closing. As of the Closing, the Company shall not have outstanding (or any commitments to issue) any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and plans, except as contemplated by this Agreementset forth on the attached Capitalization Schedule. As of the Closing, the Company shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, stock except pursuant to this Agreement the Executive Stock Agreements and the Company’s Certificate of IncorporationInvestor Rights Agreement. As of the Closing, all All of the outstanding shares of the Company’s 's capital stock are, and as of the Closing shall be be, validly issued, fully paid and nonassessable. (ii) There are no statutory or, to the best of the Company’s 's actual knowledge, contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Preferred Stock hereunder or the issuance any other capital stock or other securities of the Stock pursuant to Section 1BCompany, except as expressly contemplated set forth in the Stockholders Agreement or provided hereinInvestor Rights Agreement. Based in part on upon the investment representations and warranties of the Purchaser in Section 7C hereofPurchasers set forth herein, and to the Company's knowledge, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stockstock or other securities, and the offer, sale and issuance of the Preferred Stock hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s 's actual knowledge, there are no agreements between the Company’s 's stockholders with respect to the voting or transfer of the Company’s 's capital stock or with respect to any other aspect of the Company’s 's affairs, except for the Stockholders Agreement, Investor Rights Agreement and Executive Stock Agreements between the Senior Management Agreements Company and certain of its executives. The Company has not granted any registration rights other than under the Registration Investor Rights Agreement.

Capital Stock and Related Matters. (ia) As of the Closing and immediately thereafter, the authorized capital stock of the Company shall consist of 132,478,190.969 60,000,000 shares of Common Stock, 3,000,000 shares of Class A Common Stock, par value $.01 per share ("Class A Common Stock"), and 55,000 shares of Preferred Stock, $01 par value per share ("Preferred Stock"), of the Company, of which 179,745.677 55,000 shares shall be have been designated as Class A Preferred Stock. Immediately prior to the Closing, 21,097,206.5 shares of Common Stock, no shares of Class A Common Stock and 53,037.37 shares of Preferred Stock (134,845.633 of which shall be issued and outstanding and 44,900.044 of which shall be reserved for issuance pursuant to Section 1B(ii)), and of which 132,298,445.292 shares shall be designated as Common Stock (97,000,000 of which shall will be issued and outstanding, and 3,000,000 450,000 shares of which shall be reserved for issuances pursuant to the Option Plan, and 32,298,445.292 shall be Common Stock will have been reserved for issuance pursuant to Section 1B(ii))the Company's stock option plans in effect as of the Closing. As Except as contemplated by this Agreement or set forth in Schedule 2.02 hereto, as of the Closing, the Company shall not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any warrants, rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and as contemplated by this Agreementplans. As of the Closing, the Company shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except pursuant to this Agreement and the Company’s Certificate of Incorporation. As of the Closing, all of the outstanding shares of the Company’s capital stock shall be validly issued, fully paid and nonassessableas set forth in Schedule 2.02. (iib) There are no statutory or, to the best of the Company’s 's knowledge, contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Stock hereunder or the issuance of the Stock pursuant to Section 1BSecurities hereunder, except as expressly contemplated set forth in Schedule 2.02. To the Stockholders Agreement or provided herein. Based in part on the investment representations best of the Purchaser in Section 7C hereofCompany's knowledge, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stockstock and, and based in part on the investment representations of each Purchaser in Article III hereof, the offer, sale and issuance of the Stock Securities hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act of 1933, as amended (the "Securities Act"), or any applicable state securities laws. To the best of the Company’s 's knowledge, there are no agreements between among the Company’s 's stockholders with respect to the voting or transfer of the Company’s 's capital stock or with respect to any other aspect of the Company’s 's affairs, except for (i) the Stockholders Agreement dated February 5, 1997 (the "Stockholders Agreement") among the Company, Select Investments II ("Select II"), Select Partners L.P. ("Select LP"), WCAS VII, GTCR Fund V, GTCR Associates V and the other persons named therein; (ii) the Registration Agreement, dated February 5, 1997, among the Company, Select II, Select LP, WCAS VII, GTCR Fund V and the several persons named therein; (iii) the Purchase Agreement, dated as of February 5, 1997, as amended (the "1997 Purchase Agreement"), among the Company, GTCR Fund V, WCAS VII and the other persons named therein; (iv) the Warrant Agreement dated as of June 30, 1998 among WCAS VII, GTCR Fund V, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and (v) each of the two Amended and Restated Senior Management Agreements, each dated as of May 7, 1997 (the "Senior Management Agreements"), among the Company, Select II, Select LP and the other persons named therein, or the "Other Senior Management Agreements" (as such term is defined in the Senior Management Agreements; the Senior Management Agreements and such Other Senior Management Agreements being referred to collectively herein as the Registration Agreement"Management Agreements").