Common use of Authorized and Issued Capital Stock Clause in Contracts

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 shares of Common Stock and (ii) 10,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”). As of September 30, 2009, (i) 36,120,251 shares of Common Stock were issued and outstanding; (ii) no shares of Common Stock were held in the treasury of the Company; (iii) 2,581,501 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); and (iv) no shares of Preferred Stock were issued and outstanding. The issued and outstanding shares of Common Stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. Except as set forth in this Section 3(d), as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company are issued, reserved for issuance or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d), and other than the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”).

Authorized and Issued Capital Stock. The As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 500,000,000 shares of Common Stock and (ii) 10,000,000 20,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”). As of September 30the date hereof, 2009and before giving effect to any shares issued in connection with any of the transactions contemplated as part of the Equitization Proposals (as defined in the Backstop Agreement, as defined below), (i) 36,120,251 168,882,670 shares of Common Stock were issued and outstanding; , (ii) no 5,927,039 shares of Common Stock were held in the treasury of the Company; , (iii) 2,581,501 27,603,358 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) and restricted stock granted under any the Company’s stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); plans and (iv) no shares of Preferred Stock were issued and outstanding. The issued and outstanding shares of Common Stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and issued, are fully paid and nonassessable, and are not subject to and were not issued in violation of any preemptive or similar rights. Except as set forth in this Section 3(d2(d), and except as contemplated by the Investor Rights Agreement, dated as of April 30, 2019 (the “Investor Rights Agreement”), among X. Xxxxx FBR, Inc. (“X. Xxxxx”), Purchaser and the Company, the Backstop Exchange Agreement, dated as of April 30, 2019 (the “Backstop Agreement”), among X. Xxxxx and the Company, the Letter Agreement, dated April 5, 2019 (the “Equity Letter Agreement”), among X. Xxxxx, Purchaser and the Company, and the Agreement, dated as of January 3, 2018 (the “Vintage Letter Agreement”), among the Company, Purchaser, Xxxx Capital Management, LLC and Xxxxx X. Xxxx, as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company are issued, reserved for issuance issuance, or outstanding. Since Except as set forth in this Section 2(d), and except as contemplated by the Investor Rights Agreement, the Backstop Agreement, the Equity Letter Agreement, and the Vintage Letter Agreement, as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d), and other than the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005, neither the Company nor any of its Subsidiaries is not party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription subscription, or other right (including any preemptive right), agreement agreement, or commitment that (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or transfer repurchase, redeem redeem, or otherwise acquire, or cause to be issued, delivered, sold sold, or transferred, or repurchased, redeemed redeemed, or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its SubsidiariesCompany, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend extend, or enter into any such option, warrant, call, right, security, commitment, contract, arrangement arrangement, or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock PlansCompany’s stock option or stock-based compensation plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests Company (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan Investor Rights Agreement and Security the Vintage Letter Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”).

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 1,350,000,000 shares of Common Stock and (ii) 10,000,000 650,000,000 shares of preferred stock, par value $0.01 0.10 per share (“Preferred Stock”)share. As At the close of September business on November 30, 2009, 2006 (the "Capital Structure Date") (i) 36,120,251 561,781,500 shares of Common Stock were issued and outstanding; , (ii) no shares of the preferred stock were issued and outstanding, (iii) 3,244,317 shares of Common Stock were held by the Company in the treasury of the Company; its treasury, (iiiiv) 2,581,501 85,978,864 shares of Common Stock were reserved for future issuance pursuant to outstanding upon exercise of stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “"Option” " and, collectively, the “"Options”") granted under any stock option or stock-based compensation plan of the Company or otherwise (the “"Stock Plans”"); , and (ivv) no 200,000 shares of Preferred Stock Series A participating preferred stock were issued reserved for issuance pursuant to that certain Rights Agreement by and outstandingbetween the Company and BankBoston, N.A., as Rights Agent, dated as of February 1, 1999, as amended (the "Existing Shareholder Rights Plan"). The All issued and outstanding shares of Common Stock capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are the holders thereof do not subject to have any preemptive rights. Except as set forth in this Section 3(d)) or issuances pursuant to the Stock Plans, as at the close of business on the date of this AgreementCapital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company are were issued, reserved for issuance or outstanding. Since the date close of this Agreementbusiness on the Capital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in clause (iv) of the second sentence of this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares shares to be issued hereunderhereunder or pursuant to the PSA. Except as described in this Section 3(d), and other than except as will be required by the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005Plan, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that which (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its SubsidiariesCompany, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All On the Effective Date, the authorized capital stock of the Company and the issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) will conform to the Loan and Security Agreement, dated December 14, 2007, among description set forth in the CompanyPreferred Term Sheet, the Borrowers party theretoPSA and the Plan. On the Effective Date, the Guarantors party theretoauthorized capital stock of the Company shall consist of such number of shares of New Common Stock as shall be set forth in the Amended and Restated Constituent Documents and 34,285,716 shares of new preferred stock. On the Effective Date, assuming consummation of the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent transactions contemplated by this Agreement: (i) 101,000,000 shares of New Common Stock will be outstanding; (ii) 8,571,429 shares of Series A-1 Preferred Stock will be issued and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, outstanding; (iii) 8,571,429 shares of Series A-2 Preferred Stock will be issued and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners outstanding; and (2iv) the Indenture, dated as 17,142,858 shares of February 11, 2005, among the Company, the Guarantors party thereto, Series B Preferred Stock will be issued and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)outstanding.

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i1) 200,000,000 shares of Common Stock and (ii2) 10,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”). As of September 30, 2009, (i1) 36,120,251 shares of Common Stock were issued and outstanding; (ii2) no shares of Common Stock were held in the treasury of the Company; (iii3) 2,581,501 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); and (iv4) no shares of Preferred Stock were issued and outstanding. The issued and outstanding shares of Common Stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. Except as set forth in this Section 3(d2(b)(iv), as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company are issued, reserved for issuance or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d2(b)(iv) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunderin connection with the transactions contemplated by the Investment Agreement and this Agreement. Except as described in this Section 3(d2(b)(iv), and other than the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”).

Authorized and Issued Capital Stock. The As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 500,000,000 shares of Common Stock and (ii) 10,000,000 20,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”). As of September 30May 8, 20092020, (i) 36,120,251 46,407,555 shares of Common Stock were issued and outstanding; , (ii) no 619,181 shares of Common Stock were held in the treasury of the Company; , (iii) 2,581,501 2,601,359 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) and restricted stock granted under any the Company’s stock option or stock-based compensation plan plans, (iv) 1,666,667 shares of the Company or otherwise (the “Common Stock Plans”); were reserved for issuance pursuant to outstanding warrants to purchase shares of Common Stock and (ivv) no shares of Preferred Stock were issued and outstanding. The issued and outstanding shares of Common Stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to and were not issued in violation of any preemptive or similar rights. Except as set forth in this Section 3(d2(b), and except as contemplated by the Investor Rights Agreement, dated as of April 30, 2019 (the “Investor Rights Agreement”), by and among the Company, X. Xxxxx FBR and Vintage Capital Management, LLC, as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company are issued, reserved for issuance issuance, or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described Except as set forth in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d2(b), and other than except as contemplated by the Second Amended and Restated Stockholders Investor Rights Agreement, dated as of June 2the date hereof, 2005, neither the Company nor any of its Subsidiaries is not party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription subscription, or other right (including any preemptive right), agreement agreement, or commitment that (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell sell, or transfer, or repurchase, redeem redeem, or otherwise acquire, or cause to be issued, delivered, sold sold, or transferred, or repurchased, redeemed redeemed, or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its SubsidiariesCompany, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend extend, or enter into any such option, warrant, call, right, security, commitment, contract, arrangement arrangement, or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock PlansCompany’s stock option or stock-based compensation plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests Company (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Investor Rights Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”).

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 100,000,000 shares of Common Stock Stock, and (ii) 10,000,000 1,000,000 shares of preferred stock, par value $0.01 .01 per share share. At the close of business on March 12, 2007 (the “Preferred StockCapital Structure Date”). As of September 30, 2009, (i) 36,120,251 39,528,426 shares of Common Stock were issued and outstanding; , (ii) no shares of preferred stock were issued or outstanding, (iii) 957,447 shares of Common Stock were reserved for issuance upon exercise of the Company’s Series B Warrants (the “Warrants”), (iv) 773,331 shares of Common Stock were reserved for issuance upon exchange of the Series A Cumulative Redeemable Exchangeable Preferred Stock, par value $1.00 per share, of HLI Operating Company, Inc., a Delaware corporation and indirect subsidiary of the Company, (v) no shares of Common Stock were held by the Company in the treasury of the Company; its treasury, and, (iiivi) 2,581,501 2,993,251 shares of Common Stock were reserved for future issuance pursuant to outstanding upon exercise of stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); . Except with respect to Hxxxx Lemmerz-Inci-Jant-Sanayi, A.S., Jantas Jant Sanayi ve Ticaret A.S., Kalyani Lemmerz Limited, Siam Lemmerz Co., Ltd. and (iv) no shares of Preferred Stock were issued and outstanding. The MGG Group B.V., issued and outstanding shares of Common Stock capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. Except as set forth in this Section 3(d), as at the close of business on the date of this AgreementCapital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company are were issued, reserved for issuance or outstanding. Since the date close of this Agreementbusiness on the Capital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans or Warrants and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares shares to be issued hereunder. Except as described in this Section 3(d)) and with respect to Hxxxx Lemmerz-Inci-Jant-Sanayi, A.S., Jantas Jant Sanayi ve Ticaret A.S., Kalyani Lemmerz Limited, Siam Lemmerz Co., Ltd. and other than the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005MGG Group B.V., neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that which (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its SubsidiariesCompany, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”).

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 50,000,000 shares of Common Stock and (ii) 10,000,000 5,000,000 shares of preferred stock, par value $0.01 0.001 per share (“Preferred Stock”)share. As of September 30the close of business on October 3, 20092017 (the "Capital Structure Date"), (i) 36,120,251 20,729,668 shares of Common Stock were issued and 20,704,668 were outstanding; , (ii) no shares of preferred stock were issued or outstanding, (iii) 25,000 shares of Common Stock were held by the Company in the treasury of the Company; treasury, (iiiiv) 2,581,501 100,420 shares of Common Stock were reserved for future issuance pursuant to upon settlement of outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”"RSUs") granted under any stock option or stock-based compensation plan of the Company or otherwise (the “"Stock Plans”"); , (v) 1,043,283 shares of Common Stock were reserved for issuance upon the exercise of outstanding stock options ("Options") granted under the Stock Plans, and (ivvi) no 2,699,999 shares of Preferred Common Stock were issued and outstandingreserved for issuance upon exercise of the Warrants. All capital stock or equity interests of each of the Company's Subsidiaries is owned by the Company. The issued and outstanding shares of Common Stock capital stock or equity interests of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and and, except for the preemptive right existing under that certain Securities Purchase Agreement, dated July 19, 2017 (the "Securities Purchase Agreement"), are not subject to any preemptive rights. Except as set forth in this Section 3(d), as at the close of business on the date of this AgreementCapital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company are or any of its Subsidiaries were issued, reserved for issuance or outstanding. Since the date close of this Agreementbusiness on the Capital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company or any of its Subsidiaries have been issued or issued, reserved for issuance or become outstanding, outstanding other than shares Shares described in this Section 3(d) that have been issued upon the vesting and settlement of RSUs, the vesting and exercise of outstanding Options granted under the Stock Plans or the exercise of the Warrants and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares shares to be issued hereunder. Except Other than as described set forth in (i) this Section 3(d), (ii) the RSU or Option award agreements with employees of the Company and other than its Subsidiaries providing for the Second Amended and Restated Stockholders issuance of up to 1,131,020 shares of Common Stock, (iii) the Warrants, (iv) the Securities Purchase Agreement, dated as (v) the Company's certificate of June 2, 2005incorporation and (vi) this Agreement, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that which (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the CompanyCompany or any of its Subsidiaries. All Issuance. The Investor Shares to be issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record sold by the Company or another Subsidiaryhereunder, when such Shares are issued and delivered against payment therefor in accordance with the terms hereof, will be duly and validly authorized, fully paid and non-assessable, free and clear of any and all liabilities, obligationsTaxes, liens, security interestspreemptive rights, mortgagesrights of first refusal, pledges, charges, or subscription and similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)rights.

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 79,999,997 shares of Common Stock and (ii) 10,000,000 Stock, two shares of a class of preferred stock (one each of Series A Preferred Stock, par value $0.01 per share, and Series B Preferred Stock, par value $0.01 per share, both of which were previously issued and redeemed), one share of a class of special stock, par value $0.01 per share, and 40,000,000 shares of a class of designation preferred stock, par value $0.01 per share (“Preferred Stock”)share. As At the close of September 30, 2009business on the Effective Date, (i) 36,120,251 45,358,854 shares of Common Stock were issued and 38,562,646 shares of Common Stock were outstanding; , (ii) no 6,796,208 shares of Common Stock were held by the Company in the treasury of the Company; its treasury, (iii) 2,581,501 948,168 shares of Common Stock were reserved for future issuance pursuant to upon settlement of outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “OptionRSU” and, collectively, the “OptionsRSUs”) granted under any stock option or stock-based compensation plan of the Company or otherwise Trinity Place Holdings Inc. 2015 Stock Incentive Plan, as amended (the “Stock PlansPlan”) and pursuant to that certain employment agreement by and between the Company and Mxxxxxx Xxxxxxxxx, dated October 1, 2013 and as amended on September 11, 2015 (the “Mxxxxxxxx Employment Agreement”); and , (iv) no shares one (1) share of Preferred Stock were special stock, par value $0.01 per share, was issued and outstanding. All capital stock or equity interests of each of the Company’s Subsidiaries is owned as set forth in Section 3(a). The issued and outstanding shares of Common Stock capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessablenon-assessable, and are not subject to any preemptive rights. Except as set forth in this Section 3(d2(d), as at the close of business on the date of this AgreementEffective Date, no shares of capital stock or other equity securities or voting interest in the Company are or any of its Subsidiaries were issued, reserved for issuance or outstanding. Since the date close of this Agreementbusiness on the Effective Date, no shares of capital stock or other equity securities or voting interest in the Company or any of its Subsidiaries have been issued or reserved for issuance or become outstanding, other than shares Shares described in this Section 3(d2(d) that have been issued upon the exercise vesting and settlement of outstanding Options RSUs granted under the Stock Plans Plan, the Mxxxxxxxx Employment Agreement and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares shares to be issued hereunder. Except Other than as described set forth in (i) this Section 3(d2(d), and other than (ii) the Second Amended and Restated Stockholders Company’s certificate of incorporation, (iii) the Warrant Agreement, dated as of June 2December 19, 20052019, by and between the Company and the Company Investor, as amended (the “Company Investor Warrant Agreement”), and (iv) this Agreement, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that which (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear any of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)its Subsidiaries.

Authorized and Issued Capital Stock. The As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 500,000,000 shares of Common Stock and (ii) 10,000,000 20,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”). As of September 30the date hereof, 2009and before giving effect to any shares issued in connection with any of the transactions contemplated as part of the Equitization Proposals (as defined in the Backstop Agreement, as defined below), (i) 36,120,251 168,882,670 shares of Common Stock were issued and outstanding; , (ii) no 5,927,039 shares of Common Stock were held in the treasury of the Company; , (iii) 2,581,501 27,603,358 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) and restricted stock granted under any the Company’s stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); plans and (iv) no shares of Preferred Stock were issued and outstanding. The issued and outstanding shares of Common Stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and issued, are fully paid and nonassessable, and are not subject to and were not issued in violation of any preemptive or similar rights. Except as set forth in this Section 3(d2(d), and except as contemplated by the Investor Rights Agreement, dated as of April 30, 2019 (the “Investor Rights Agreement”), among B. Xxxxx FBR, Inc. (“B. Xxxxx”), Purchaser and the Company, the Backstop Exchange Agreement, dated as of April 30, 2019 (the “Backstop Agreement”), among B. Xxxxx and the Company, the Letter Agreement, dated April 5, 2019 (the “Equity Letter Agreement”), among B. Xxxxx, Purchaser and the Company, and the Agreement, dated as of January 3, 2018 (the “Vintage Letter Agreement”), among the Company, Purchaser, Kxxx Capital Management, LLC and Bxxxx X. Xxxx, as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company are issued, reserved for issuance issuance, or outstanding. Since Except as set forth in this Section 2(d), and except as contemplated by the Investor Rights Agreement, the Backstop Agreement, the Equity Letter Agreement, and the Vintage Letter Agreement, as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d), and other than the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005, neither the Company nor any of its Subsidiaries is not party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription subscription, or other right (including any preemptive right), agreement agreement, or commitment that (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or transfer repurchase, redeem redeem, or otherwise acquire, or cause to be issued, delivered, sold sold, or transferred, or repurchased, redeemed redeemed, or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its SubsidiariesCompany, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend extend, or enter into any such option, warrant, call, right, security, commitment, contract, arrangement arrangement, or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock PlansCompany’s stock option or stock-based compensation plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests Company (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan Investor Rights Agreement and Security the Vintage Letter Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”).

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 79,999,997 shares of Common Stock Stock, one share of a class of special stock, par value $0.01 per share, and (ii) 10,000,000 40,000,000 shares of a class of designation preferred stock, par value $0.01 per share share. At the close of business on October 21, 2021 (the “Preferred StockCapital Structure Date”). As of September 30, 2009, (i) 36,120,251 39,054,696 shares of Common Stock were issued and 32,656,821 shares of Common Stock were outstanding; , (ii) no 6,397,875 shares of Common Stock were held by the Company in the treasury of the Company; its treasury, and (iii) 2,581,501 861,156 shares of Common Stock were reserved for future issuance pursuant to upon settlement of outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “OptionRSU” and, collectively, the “OptionsRSUs”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); and (iv) no shares . All capital stock or equity interests of Preferred Stock were issued and outstandingeach of the Company’s Subsidiaries is owned directly or indirectly by the Company. The issued and outstanding shares of Common Stock capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessablenon-assessable, and are not subject to any preemptive rights. Except as set forth in this Section 3(d2(e), as at the close of business on the date of this AgreementCapital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company are or any of its Subsidiaries were issued, reserved for issuance or outstanding. Since the date close of this Agreementbusiness on the Capital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company or any of its Subsidiaries have been issued or reserved for issuance or become outstanding, other than shares Investor Shares described in this Section 3(d2(e) that have been issued upon the exercise vesting and settlement of outstanding Options RSUs granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares shares to be issued hereunder. Except Other than as described set forth in (i) this Section 3(d2(e), and other than (ii) the Second Amended and Restated Stockholders Employment Agreement, dated as of June 2October 1, 20052013, between the Company and Xxxxxxx Xxxxxxxxx (as amended from time to time, the “CEO Employment Agreement”), (iii) restricted stock unit agreements with other employees of the Company (to the extent not yet settled or terminated), (iv) the Company’s certificate of incorporation, (v) the Warrant Agreement, dated as of December 19, 2019, among the Company and TPHS Lender LLC, (vi) the Operating Agreement of 250 N 10 JV LLC, dated as of November 21, 2019, by and among TFC N 10 LLC and TPH 250 N 10 Investor LLC and (vii) this Agreement, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that which (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear any of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)its Subsidiaries.

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 1,350,000,000 shares of Common Stock and (ii) 10,000,000 650,000,000 shares of preferred stock, par value $0.01 0.10 per share (“Preferred Stock”)share. As At the close of September business on November 30, 2009, 2006 (the “Capital Structure Date”) (i) 36,120,251 561,781,500 shares of Common Stock were issued and outstanding; , (ii) no shares of the preferred stock were issued and outstanding, (iii) 3,244,317 shares of Common Stock were held by the Company in the treasury of the Company; its treasury, (iiiiv) 2,581,501 85,978,864 shares of Common Stock were reserved for future issuance pursuant to outstanding upon exercise of stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); , and (ivv) no 200,000 shares of Preferred Stock Series A participating preferred stock were issued reserved for issuance pursuant to that certain Rights Agreement by and outstandingbetween the Company and BankBoston, N.A., as Rights Agent, dated as of February 1, 1999, as amended (the “Existing Shareholder Rights Plan”). The All issued and outstanding shares of Common Stock capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are the holders thereof do not subject to have any preemptive rights. Except as set forth in this Section 3(d)) or issuances pursuant to the Stock Plans, as at the close of business on the date of this AgreementCapital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company are were issued, reserved for issuance or outstanding. Since the date close of this Agreementbusiness on the Capital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in clause (iv) of the second sentence of this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares shares to be issued hereunderhereunder or pursuant to the PSA. Except as described in this Section 3(d), and other than except as will be required by the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005Plan, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that which (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its SubsidiariesCompany, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All On the Effective Date, the authorized capital stock of the Company and the issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) will conform to the Loan and Security Agreement, dated December 14, 2007, among description set forth in the CompanyPreferred Term Sheet, the Borrowers party theretoPSA and the Plan. On the Effective Date, the Guarantors party theretoauthorized capital stock of the Company shall consist of such number of shares of New Common Stock as shall be set forth in the Amended and Restated Constituent Documents and 34,285,716 shares of new preferred stock. On the Effective Date, assuming consummation of the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent transactions contemplated by this Agreement: (i) 101,000,000 shares of New Common Stock will be outstanding; (ii) 8,571,429 shares of Series A-1 Preferred Stock will be issued and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, outstanding; (iii) 8,571,429 shares of Series A-2 Preferred Stock will be issued and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners outstanding; and (2iv) the Indenture, dated as 17,142,858 shares of February 11, 2005, among the Company, the Guarantors party thereto, Series B Preferred Stock will be issued and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)outstanding.

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 1,350,000,000 shares of Common Stock and (ii) 10,000,000 650,000,000 shares of preferred stock, par value $0.01 0.10 per share (“Preferred Stock”)share. As At the close of September business on June 30, 2009, 2007 (the “Capital Structure Date”) (i) 36,120,251 561,781,500 shares of Common Stock were issued and outstanding; , (ii) no shares of the preferred stock were issued and outstanding, (iii) 3,244,317 shares of Common Stock were held by the Company in the treasury of the Company; its treasury, (iiiiv) 2,581,501 85,978,864 shares of Common Stock were reserved for future issuance pursuant to outstanding upon exercise of stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); , and (ivv) no 200,000 shares of Preferred Stock Series A participating preferred stock were issued reserved for issuance pursuant to that certain Rights Agreement by and outstandingbetween the Company and BankBoston, N.A., as Rights Agent, dated as of February 1, 1999, as amended (the “Existing Shareholder Rights Plan”). The All issued and outstanding shares of Common Stock capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are the holders thereof do not subject to have any preemptive rights. Except as set forth in this Section 3(d)) or issuances pursuant to the Stock Plans, as at the close of business on the date of this AgreementCapital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company are were issued, reserved for issuance or outstanding. Since the date close of this Agreementbusiness on the Capital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in clause (iv) of the second sentence of this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares shares to be issued hereunderhereunder or pursuant to the Plan Terms. Except as described in this Section 3(d), and other than except as will be required by the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005Plan, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that which (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its SubsidiariesCompany, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All On the Effective Date, the authorized capital stock of the Company and the issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) shall be consistent with the Loan and Security Agreement, dated December 14, 2007, among description set forth in the CompanyPreferred Term Sheet, the Borrowers party theretoPlan Terms and the Plan. On the Effective Date, the Guarantors party theretoauthorized capital stock of the Company shall consist of such number of shares of New Common Stock as shall be set forth in the Amended and Restated Constituent Documents and 23,207,104 shares of new preferred stock. On the Effective Date, assuming consummation of the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent transactions contemplated by this Agreement: (i) 124,400,000 shares of New Common Stock will be outstanding; (ii) 12,787,724 shares of Series A Preferred Stock will be issued and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners outstanding and (2iii) the Indenture, dated as 10,419,380 shares of February 11, 2005, among the Company, the Guarantors party thereto, Series B Preferred Stock will be issued and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)outstanding.

Authorized and Issued Capital Stock. The As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 shares of Common Stock and (ii) 10,000,000 20,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”). As of September 30April 25, 20092019, (i) 36,120,251 168,867,532 shares of Common Stock were issued and outstanding; , (ii) no 5,925,248 shares of Common Stock were held in the treasury of the Company; , (iii) 2,581,501 5,249,297 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) and restricted stock granted under any the Company’s stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); plans and (iv) no shares of Preferred Stock were issued and outstanding. The issued and outstanding shares of Common Stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to and were not issued in violation of any preemptive or similar rights. Except as set forth in this Section 3(d), and except as contemplated by the Investor Rights Agreement, dated as of April 30, 2019, among the Backstop Exchange Party, Vintage and the Company, the Letter Agreement, dated April 5, 2019, among the Backstop Exchange Party, Vintage and the Company, and the Agreement, dated as of January 3, 2018, among the Company, Vintage, Xxxx Capital Management, LLC and Xxxxx X. Xxxx, as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company are issued, reserved for issuance issuance, or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described set forth in this Section 3(d), and other than except as contemplated by the Second Amended and Restated Stockholders Investor Rights Agreement, dated as of June 2April 30, 20052019, neither among the Backstop Exchange Party, Vintage and the Company, the Letter Agreement, dated April 5, 2019, among the Backstop Exchange Party, Vintage and the Company, and the Agreement, dated as of January 3, 2018, among the Company, Vintage, Xxxx Capital Management, LLC and Xxxxx X. Xxxx, as of the date of this Agreement, as of the date hereof, the Company nor any of its Subsidiaries is not party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription subscription, or other right (including any preemptive right), agreement agreement, or commitment that (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell sell, or transfer, or repurchase, redeem redeem, or otherwise acquire, or cause to be issued, delivered, sold sold, or transferred, or repurchased, redeemed redeemed, or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its SubsidiariesCompany, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend extend, or enter into any such option, warrant, call, right, security, commitment, contract, arrangement arrangement, or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock PlansCompany’s stock option or stock-based compensation plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests Company (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Investor Rights Agreement, dated December 14as of April 30, 20072019, among the Backstop Exchange Party, Vintage and the Company, and the Agreement, dated as of January 3, 2018, among the Company, the Borrowers party theretoVintage, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Xxxx Capital Corporation, as Documentation Agent, and Wachovia Capital MarketsManagement, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”Xxxxx X. Xxxx).

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 100,000,000 shares of Common Stock and (ii) 10,000,000 30,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”). As of September 30April 15, 20092011, (i) 36,120,251 33,215,906 shares of Common Stock were issued and outstanding; (ii) no shares of Common Stock were held in the treasury of the Company; (iii) 2,581,501 915,316 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); and (iv) no shares of Preferred Stock were issued and outstanding. The issued and outstanding shares of Common Stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are have not subject to been issued in violation of any preemptive or similar rights. Except as set forth in this Section 3(d), as of the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company are issued, reserved for issuance or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, Shares and the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d), and other than the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive or similar right), agreement or commitment that (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”).

Authorized and Issued Capital Stock. The (a) As of the Effective Date, the authorized capital stock of the Company consists will consist of (i) 200,000,000 an amount of shares of New Common Stock and (ii) 10,000,000 shares any other equity securities, in each case as set forth in the Certificate of preferred stock, par value $0.01 per share (“Preferred Stock”)Incorporation. As of September 30, 2009the Effective Date, (i) 36,120,251 nine million nine hundred and nine thousand (9,909,000) shares of New Common Stock were issued and will be outstanding; , (ii) ninety one thousand (91,000) vested shares of restricted New Common Stock and/or restricted stock units of New Common Stock issued in accordance with and subject to the terms of the Management Incentive Plan will be outstanding (the “Emergence MIP Vested Grant”), (iii) New Warrants to purchase up to one million one hundred and eleven thousand one hundred and eleven (1,111,111) shares of New Common Stock will be outstanding, (iv) no shares of preferred stock will be issued and outstanding, (v) no shares of New Common Stock were will be held by the Company in the treasury of the Company; its treasury, (iiivi) 2,581,501 no more than four hundred twenty nine thousand (429,000) shares of New Common Stock were will be reserved for future issuance pursuant to outstanding upon exercise of stock options and other rights to purchase or acquire shares of New Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan the Management Incentive Plan (excluding the 91,000 shares of New Common Stock that may be reserved for issuance with respect to the Emergence MIP Vested Grant) and (vii) other than the one million one hundred and eleven thousand one hundred and eleven (1,111,111) shares of New Common Stock reserved for issuance upon exercise of the Company or otherwise (New Warrants and the “Stock Plans”); and (iv) no shares of Preferred New Common Stock were issued reserved for issuance for the Emergence MIP Vested Grant and/or for issuance upon exercise of upon exercise of stock options and outstanding. The issued and outstanding other rights to purchase or acquire shares of New Common Stock of granted under the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. Except as set forth in this Section 3(d), as of the date of this AgreementManagement Incentive Plan, no shares of capital stock or other equity securities or voting interest in the Company are issued, New Common Stock will be reserved for issuance or outstanding. Since the date of this Agreement, no shares of capital stock or other equity securities or voting interest in the Company have been issued or reserved for issuance or become outstanding, other than shares described in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares to be issued hereunder. Except as described in this Section 3(d), and other than the Second Amended and Restated Stockholders Agreement, dated as of June 2, 2005, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)Effective Date.

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 40,000,000 shares of Common Stock Stock, and (ii) 10,000,000 100,000 shares of preferred stock, par value $0.01 .01 per share share. At the close of business on February 1, 2013 (the “Preferred StockCapital Structure Date”). As of September 30, 2009, (i) 36,120,251 12,950,810 shares of Common Stock were issued and outstanding; , (ii) no shares of preferred stock were issued or outstanding, (iii) 3,682,199 shares of Common Stock were held by the Company in the treasury of the Company; its treasury, and, (iiiiv) 2,581,501 665,675 shares of Common Stock were reserved for future issuance pursuant to outstanding upon exercise of stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); and (iv) no shares . All capital stock or equity interests of Preferred Stock were issued and outstandingeach of the Company’s Subsidiaries is owned by the Company. The issued and outstanding shares of Common Stock capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. Except as set forth in this Section 3(d), as at the close of business on the date of this AgreementCapital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company are or any of its Subsidiaries were issued, reserved for issuance or outstanding. Since the date close of this Agreementbusiness on the Capital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company or any of its Subsidiaries have been issued or reserved for issuance or become outstanding, other than shares Shares described in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares shares to be issued hereunder. Except Other than as described set forth in (i) this Section 3(d), (ii) the Voting Agreement, (iii) the Voting and other than Standstill Agreements, (iv) the Second Amended Separation and Restated Stockholders General Release Agreement between the Company and Txxxxx X. Xxxxxxxxx dated as of the date hereof, and (v) the Non-Qualified Stock Option Agreement, dated as of June 2the date hereof, 2005between the Company and Mxxxxxxx, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that which (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the CompanyCompany or any of its Subsidiaries. All issued The Company does not currently have, and outstanding has not ever had at any time, an aggregate of more than 20,000,000 shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record Common Stock outstanding, held by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agentin its treasury, and Wachovia Capital Markets, LLC reserved for issuance upon exercise of stock options and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as other rights to purchase shares of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”Common Stock or vesting of restricted stock units).

Authorized and Issued Capital Stock. The authorized capital stock of the Company Borrower consists of (i) 200,000,000 95,000,000 shares of Common Stock Stock, of which (A) 69,479,340 shares were issued and outstanding as of the Closing Date, and (B) 20,999,665 shares were reserved for issuance upon the exercise or conversion, as the case may be, of outstanding options, warrants or other convertible securities as of the Closing Date; (ii) 10,000,000 5,000,000 shares of preferred stock, par value $0.01 per share of which (x) 821,496 shares have been designated as Series B Preferred Stock (the “Series B Preferred Stock”). As , of September 30, 2009, (i) 36,120,251 which 44,258 shares of Common Stock were issued and outstanding; (ii) no shares of Common Stock were held in the treasury of the Company; (iii) 2,581,501 shares of Common Stock were reserved for future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); and (iv) no shares of Series B Preferred Stock were issued and outstandingoutstanding as of the Closing Date, and no shares were reserved for issuance upon the exercise or conversion, as the case may be, of outstanding options, warrants or other convertible securities, and (y) 1,730,697 shares have been designated as Series E Preferred Stock (the “Series E Preferred Stock”), all of which shares of Series E Preferred Stock were issued and outstanding as of the Closing Date, and no shares were reserved for issuance upon the exercise or conversion, as the case may be, of outstanding options, warrants or other convertible securities. The All issued and outstanding shares of Common Stock, Series B Preferred Stock of the Company and each of its Subsidiaries Series E Preferred Stock have been duly authorized and validly issued and issued, are fully paid and nonassessable, have been issued and are sold in compliance with the registration requirements (including any exceptions therefrom) of federal and state securities laws or the applicable statutes of limitation have expired, and were not subject to issued in violation of any preemptive rightsrights or similar rights to subscribe for or purchase securities. Except as set forth herein or in this Section 3(dBorrower’s Historic SEC Reports, there are no (i) outstanding rights (including, without limitation, preemptive rights), as of the date of this Agreementwarrants or options to acquire, no or instruments convertible into or exchangeable for, any unissued shares of capital stock or other equity securities or voting interest in Borrower or any of Borrower’s Subsidiaries, or any contract, commitment, agreement, understanding or arrangement of any kind to which Borrower or any of Borrower’s Subsidiaries is a party and relating to the Company are issued, reserved for issuance or outstanding. Since the date sale of this Agreement, no shares of any capital stock or other equity securities convertible or voting interest in the Company have been issued exchangeable security of Borrower or reserved for issuance or become outstandingany of Borrower’s Subsidiaries, other than shares described in this Section 3(d) that have been issued upon the exercise options granted to directors and employees of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares Borrower pursuant to be issued hereunder. Except as described in this Section 3(d), and other than the its Second Amended and Restated Stockholders Agreement, dated as 2005 Equity Incentive Plan; or (ii) obligations of June 2, 2005, neither the Company nor Borrower or any of Borrower’s Subsidiaries to purchase redeem or otherwise acquire any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that (w) obligates the Company capital stock or any interest therein or to pay any dividend or make any other distribution in respect thereof. Other than the right of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any the holders of shares of the capital stock ofSeries B Preferred Stock to participate in the Rights Offering, there are no anti-dilution or price adjustment provisions, co-sale rights, registration rights, rights of first refusal or other equity or voting interests in, similar rights contained in the Company or terms governing any outstanding security of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, Borrower that will be triggered by the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock issuance of the Company (other than pursuant to restricted stock award agreements under Rights Offering Shares or the Stock Plans), or (z) relates to the voting of any shares of capital stock of the Company. All issued and outstanding shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agent, and Wachovia Capital Markets, LLC and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”)Conversion Shares.

Authorized and Issued Capital Stock. The authorized capital stock of the Company consists of (i) 200,000,000 40,000,000 shares of Common Stock Stock, and (ii) 10,000,000 100,000 shares of preferred stock, par value $0.01 .01 per share share. At the close of business on February 1, 2013 (the “Preferred StockCapital Structure Date”). As of September 30, 2009, (i) 36,120,251 12,950,810 shares of Common Stock were issued and outstanding; , (ii) no shares of preferred stock were issued or outstanding, (iii) 3,682,199 shares of Common Stock were held by the Company in the treasury of the Company; its treasury, and, (iiiiv) 2,581,501 665,675 shares of Common Stock were reserved for future issuance pursuant to outstanding upon exercise of stock options and other rights to purchase shares of Common Stock and vesting of restricted stock units (each, an “Option” and, collectively, the “Options”) granted under any stock option or stock-based compensation plan of the Company or otherwise (the “Stock Plans”); and (iv) no shares . All capital stock or equity interests of Preferred Stock were issued and outstandingeach of the Company’s Subsidiaries is owned by the Company. The issued and outstanding shares of Common Stock capital stock of the Company and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive rights. Except as set forth in this Section 3(d), as at the close of business on the date of this AgreementCapital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company are or any of its Subsidiaries were issued, reserved for issuance or outstanding. Since the date close of this Agreementbusiness on the Capital Structure Date, no shares of capital stock or other equity securities or voting interest in the Company or any of its Subsidiaries have been issued or reserved for issuance or become outstanding, other than shares Shares described in this Section 3(d) that have been issued upon the exercise of outstanding Options granted under the Stock Plans and other than the Offered Shares, the Unsubscribed Shares, and the Exchange Shares shares to be issued hereunder. Except Other than as described set forth in (i) this Section 3(d), (ii) the Voting Agreement, (iii) the Voting and other than Standstill Agreements, (iv) the Second Amended Separation and Restated Stockholders General Release Agreement between the Company and Xxxxxx X. Xxxxxxxxx dated as of the date hereof, and (v) the Non-Qualified Stock Option Agreement, dated as of June 2the date hereof, 2005between the Company and Xxxxxxxx, neither the Company nor any of its Subsidiaries is party to or otherwise bound by or subject to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment that which (w) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries, (x) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (y) restricts the transfer of any shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Stock Plans), or (z) relates to the voting of any shares of capital stock of the CompanyCompany or any of its Subsidiaries. All issued The Company does not currently have, and outstanding has not ever had at any time, an aggregate of more than 20,000,000 shares of capital stock and equity interests (as applicable) of each Subsidiary are owned beneficially and of record Common Stock outstanding, held by the Company or another Subsidiary, free and clear of any and all liabilities, obligations, liens, security interests, mortgages, pledges, charges, or similar encumbrances, other than as provided under (1) the Loan and Security Agreement, dated December 14, 2007, among the Company, the Borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, Wachovia Bank, National Association, as Administrative Agent and Collateral Trustee, UBS Securities LLC, as Syndication Agent, General Electric Capital Corporation, as Documentation Agentin its treasury, and Wachovia Capital Markets, LLC reserved for issuance upon exercise of stock options and UBS Securities LLC, as Joint Lead Bookrunners and (2) the Indenture, dated as other rights to purchase shares of February 11, 2005, among the Company, the Guarantors party thereto, and Wilmington Trust Company, as Trustee, governing the Notes (the “Old Indenture”Common Stock or vesting of restricted stock units).