Common use of Capitalization and Related Matters Clause in Contracts

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon exercise of warrants and Options and conversion of the Notes are as set forth on Schedule A. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock other than the warrants, Options and Notes as set forth in Schedule A, and will not 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, other than the warrants and Options as set forth in Schedule A. As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company’s capital stock will be validly issued, fully paid and nonassessable. There are no statutory or contractual stockholders’ preemptive rights with respect to the issuance of the Notes hereunder. 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 Notes hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and conversion exercise of the Notes Warrants hereunder (after giving effect to anti-dilution adjustments) are as set forth on Schedule A. 4.1(d) hereto. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock other than the warrants, Options and Notes except as set forth in Schedule A4.1(d), and will not 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, other than the warrants and Options except as set forth in Schedule A. 4.1(d). As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company’s 's capital stock will be validly issued, fully paid and nonassessable. There Except as set forth on the Schedule 4.1(d), there are no statutory or contractual stockholders’ ' preemptive rights or notices with respect to the issuance of the Notes Shares and Warrants hereunder. The Subject to and based on the accuracy of all representations made by Roaring Fork in this Offering, 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 Notes Shares and Warrants hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As (a) The Company has an authorized capital consisting of 230,000,000,000 shares of Common Stock and 25,000,000 shares in total of Series A-2 Convertible Preferred Stock, Series D Convertible Preferred Stock, Series C Preferred Stock and collectively with the Series E Preferred Stock, “Preferred Stock”, of which 13,489,918,237 shares of Common Stock and 3,000 shares of Preferred Stock are issued and outstanding as of the Closing Date date hereof (after giving effect to the transactions contemplated hereby) as set forth on Schedule 3.2(a) hereto. All of the outstanding shares of the Company’s capital stock are, and immediately thereafterafter the Closing will be, validly issued and outstanding, fully paid and non-assessable. No such stock (i) was issued in violation of the authorized preemptive rights of any shareholder or (ii) is held as treasury stock. All of the outstanding capital stock of the Company was issued in compliance with all applicable federal and the shares of stock that are issued, outstanding state securities or “blue sky” laws and reserved for issuance upon exercise of warrants and Options and conversion of the Notes are regulations. (b) Except as set forth on Schedule A. As 3.2(b) hereto, there are no outstanding securities convertible into Common Stock or any other capital stock of the Closing DateCompany nor any rights to subscribe for or to purchase, or any options for the Company will not have outstanding purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any character relating to, such capital stock or securities convertible or exchangeable for any shares of its into such capital stock other than the warrants(collectively, Options and Notes “Securities Rights”). Except as set forth in on Schedule A, and will not 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, other than the warrants and Options as set forth in Schedule A. As of the Closing Date, 3.2 hereto the Company will (i) is not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock; or (ii) has no liability for dividends or other distributions declared or accrued, except but unpaid, with respect to any capital stock. (c) Except as set forth herein and on Schedule 3.2(c) hereto, the Charter DocumentsCompany is not a party to any agreement, respectivelyunderstanding or arrangement, as in effect on the date hereof. As of the Closingdirect or indirect, all of the outstanding shares relating to any class or series of the Company’s capital stock will be validly issued, fully paid and nonassessable. There are no statutory or contractual stockholders’ preemptive rights with respect to the issuance of the Notes hereunder. 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 offerincluding, sale and issuance of the Notes hereunder do not require without limitation, any voting agreement, restriction on resale, shareholder agreement or registration under the Securities Act or any applicable state securities lawsrights agreement.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon exercise of warrants and Options and conversion of the Notes (without giving effect to anti-dilution adjustments) are as set forth on Schedule A. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock other than the warrants, Options and Notes as set forth in Schedule A, and will not 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, other than the warrants and Options as set forth in Schedule A. As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company’s capital stock will be validly issued, fully paid and nonassessable. There are no statutory or contractual stockholders’ preemptive rights with respect to the issuance of the Notes and Warrants hereunder. 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 Notes hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon exercise of warrants and Options and conversion exercise of the Notes Warrants issued hereunder (after giving effect to anti-dilution adjustments) are as set forth on the Capitalization Schedule A. and Addendum attached hereto. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock other than the warrants, Options and Notes except as set forth in Schedule Athe Capitalization Schedule, and will not 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, other than the warrants and Options except as set forth in Schedule A. the Capitalization Schedule. As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company’s 's capital stock will be validly issued, fully paid and nonassessable. There Except as set forth on the Capitalization Schedule and Addendum, there are no statutory or contractual stockholders’ ' preemptive rights or notices with respect to the issuance of the Notes Common Stock and Warrants hereunder. The Subject to and based on the accuracy of all representations made by all Purchasers in this Offering, 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 Notes Common Stock and Warrants hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the each Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon exercise of warrants and Options and conversion exercise of the Notes Warrants issued hereunder (after giving effect to anti-dilution adjustments) are as set forth on the Capitalization Schedule A. and Addendum attached hereto. As of the each Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock other than the warrants, Options and Notes except as set forth in Schedule Athe Capitalization Schedule, and will not 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, other than the warrants and Options except as set forth in Schedule A. the Capitalization Schedule. As of the each Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company’s 's capital stock will be validly issued, fully paid and nonassessable. There Except as set forth on the Capitalization Schedule and Addendum, there are no statutory or contractual stockholders’ ' preemptive rights or notices with respect to the issuance of the Notes Common Stock and Warrants hereunder. The Subject to and based on the accuracy of all representations made by all Purchasers in this Offering, 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 Notes Common Stock and Warrants hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon exercise of warrants and Options and conversion exercise of the Notes Warrants issued hereunder (after giving effect to anti-dilution adjustments) are as set forth on Schedule A. 4.1(d) attached hereto. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock other than the warrants, Options and Notes except as set forth in Schedule Athe Capitalization Schedule, and will not 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, other than the warrants and Options except as set forth in Schedule A. the Capitalization Schedule. As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company’s capital stock will be validly issued, fully paid and nonassessable. There are no statutory or contractual stockholders’ preemptive rights or notices with respect to the issuance of the Notes Common Stock and Warrants hereunder. The Company has not violated any applicable federal or state securities laws Subject to and based on the accuracy of all representations made by all Purchasers in connection with the offerthis Offering, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Notes Common Stock and Warrants hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the Closing Date and immediately thereafterMay 12, 2005, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon exercise of warrants and Options and conversion exercise of the Notes Warrants issued hereunder (after giving effect to anti-dilution adjustments) are as set forth on the Capitalization Schedule A. and Addendum attached hereto. As of the Closing DateMay 12, 2005, the Company will does not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock other than the warrants, Options and Notes except as set forth in Schedule Athe Capitalization Schedule, and will not 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, other than the warrants and Options except as set forth in the Capitalization Schedule A. and except as may be issued from time to time pursuant to Closings under this Agreement. As of the Closing DateMay 12, 2005, the Company will is not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company’s 's capital stock will be validly issued, fully paid and nonassessable. There are no statutory or contractual stockholders’ ' preemptive rights or notices with respect to the issuance of the Notes Common Stock and Warrants hereunder. The Subject to and based on the accuracy of all representations made by all Purchasers in this Offering, 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 Notes Common Stock and Warrants hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock capitalization of Holdings and the Company, the capitalization and ownership of the Company and the shares outstanding equity securities of stock that are issued, outstanding and reserved for issuance upon exercise of warrants and Options and conversion each of the Notes are other Loan Parties is as set forth shown on Schedule A. As the Corporate Schedule. Immediately following the Closing, none of the Closing Date, the Company Loan Parties will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock equity securities other than as shown on the warrants, Options and Notes as set forth in Corporate Schedule A, and will not 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 stocksecurities, other than as shown on the warrants and Options as set forth in Schedule A. Corporate Schedule. As of the Closing Date, the Company Loan Parties will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stockequity securities, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereofCorporate Schedule. As of the ClosingClosing Date, all of the Loan Parties' outstanding shares of the Company’s capital stock securities will be validly issued, fully paid and nonassessable. Holdings has, and will maintain at all times, sufficient authorized shares of Common Stock to allow for the exercise of the Warrants. There are no statutory or contractual stockholders’ ' preemptive rights with respect to the issuance of the Notes hereunderWarrants hereunder except such as have been waived. 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 Notes Securities hereunder do not require registration under the Securities Act or any applicable state securities lawslaws except as provided in Section 5.1(k). There are no agreements among the Company's stockholders with respect to the voting or transfer of the Company's capital securities other than as contemplated herein.

Capitalization and Related Matters. The capitalization of the Company is as set forth on SCHEDULE 4.1(D), which SCHEDULE 4.1(D) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon conversion of notes, exercise of warrants and Options and conversion exercise of the Notes Warrants hereunder (after giving effect to anti-dilution adjustments) are as set forth on Schedule A. SCHEDULE 4.1(D) hereto. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock other than the warrants, Options and Notes except as set forth in Schedule ASCHEDULE 4.1(D), and will not 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, other than the warrants and Options except as set forth in Schedule A. SCHEDULE 4.1(D). As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company’s 's capital stock will be validly issued, fully paid and nonassessable. There Except as set forth on the SCHEDULE 4.1(D), there are no statutory or contractual stockholders’ ' preemptive rights or notices with respect to the issuance of the Notes Shares and Warrants hereunder. The Subject to and based on the accuracy of all representations made by the Purchasers in this Offering, 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 Notes Shares and Warrants hereunder do not require registration under the Securities Act or any applicable state securities laws. No further approval or authorization of any stockholder, the Board of Directors of the Company or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company's capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company's stockholders.

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon exercise of warrants and Options and conversion of the Notes (without giving effect to anti-dilution adjustments) are as set forth on Schedule A. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock other than the warrants, Options and Notes as set forth in Schedule A, and will not 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, other than the warrants and Options as set forth in Schedule A. As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company’s capital stock will be validly issued, fully paid and nonassessable. There are no statutory or contractual stockholders’ preemptive rights with respect to the issuance of the Notes hereunder. 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 Notes hereunder do not require registration under the Securities Act or any applicable state securities laws.