Common use of Capital Stock and Related Matters Clause in Contracts

Capital Stock and Related Matters. As of the Closing and immediately thereafter, the authorized capital stock of the Company will consist of (i) 1,000 shares of Series A Convertible Preferred Stock, $.01 par value (the "Series A Preferred"), 1,000 of which are issued and outstanding, (ii) 1,000 shares of Series B Convertible Preferred Stock, $.01 par value (the "Series B Preferred"), 1,000 of which are issued and outstanding, (iii) 1,000 shares of the Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are issued and outstanding, (iv) 1,667 shares of the Series D Convertible Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 shares of Series E Preferred, 720,757 of which are issued and outstanding and (vi) 20,000,000 shares of Common Stock, of which 1,146,895 shares are issued and outstanding, 304,950 shares have been reserved for issuance upon conversion of the Series A Preferred and 399,400 shares have been reserved for issuance upon conversion of the Series B Preferred and 138,650 shares have been reserved for issuance upon conversion of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 shares of Common Stock reserved for issuance upon exercise of the Warrant will represent, as of the Closing, in excess of 7.19% of the Company's Common Stock and options on a Fully-Diluted Basis, as set forth in EXHIBIT F hereto. As of the Closing, neither the Company nor any Subsidiary will have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock, nor will it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except for the Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. as more fully set forth on SCHEDULE 5.2 attached hereto. As of the Closing, neither the Company nor any Subsidiary will be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except pursuant to the Certificate of Incorporation. As of the Closing, all of the outstanding shares of the Company's capital stock will be validly issued, fully paid and nonassessable.

Capital Stock and Related Matters. As of the Closing Date, and immediately thereafter--------------------------------- after giving effect to the transactions contemplated hereby and pursuant to the Related Documents, (i) the authorized capital stock of the Company will consist of a total of 110,000,000 shares as follows: (ia) 1,000 shares of Series A Convertible Preferred Stock, $.01 par value (the "Series A Preferred"), 1,000 of which are issued and outstanding, (ii) 1,000 shares of Series B Convertible Preferred Stock, $.01 par value (the "Series B Preferred"), 1,000 of which are issued and outstanding, (iii) 1,000 shares of the Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are issued and outstanding, (iv) 1,667 shares of the Series D Convertible Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 shares of Series E Preferred, 720,757 of which are issued and outstanding and (vi) 20,000,000 100,000,000 shares of Common Stock, par value $.01 per share, of which 1,146,895 1,164,440 shares are issued and outstanding, 304,950 the ownership and the consideration paid for such shares have been is as set forth on Schedule 10C and (1) 259,960 shares of which are reserved for for the exercise of options to purchase such shares issued or issuable to officers, directors, consultants, independents contractors and employees of the Company and its Subsidiaries and other providers of services to the Company and its Subsidiaries and (2) 1,560,000 shares of which are reserved for issuance upon conversion of the Series A Convertible Preferred Stock; (b) 10,000,000 shares of Convertible Preferred Stock, par value $1.00 per share, of which (x) 2,000,000 shares are designated Series A Convertible Preferred Stock, of which 1,000,000 shares are issued and 399,400 outstanding and (y) 2,500,000 shares are designated Series B Convertible Preferred Stock, of which 2,000,000 shares are issued and outstanding; (ii) all issued and outstanding shares shall have been reserved for issuance upon conversion of the Series B Preferred duly and 138,650 validly issued, fully paid and non-assessable; (iii) no shares have been reserved for issuance upon conversion of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 shares of Common Stock reserved for issuance upon exercise of the Warrant will represent, as of the Closing, in excess of 7.19% of the Company's Common Stock and options on a Fully-Diluted Basis, as set forth in EXHIBIT F hereto. As of the Closing, neither the Company nor any Subsidiary will have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock, nor will it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except for the Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members will be owned or held by or for the account of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. as more fully set forth on SCHEDULE 5.2 attached hereto. As of the Closing, neither the Company nor or any Subsidiary will be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except pursuant to the Certificate of Incorporation. As of the Closing, all of the outstanding shares of the Company's capital stock will be validly issued, fully paid and nonassessable.42

Capital Stock and Related Matters. i. As of the Closing and immediately thereafter, the authorized capital stock of the Company will shall consist of (ia) 1,000 413,965 shares of Series A Convertible I Preferred Stock, $.01 par value (the "Series A Preferred"), 1,000 all of which are shall be issued and outstanding, (iib) 1,000 336,021 shares of Series B Convertible II Preferred Stock, $.01 par value (the "Series B Preferred"), 1,000 all of which are shall be issued and outstanding, (iiic) 1,000 215,000 shares of the Series C Convertible III Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are 200,032 shares shall be issued and outstanding, (ivd) 1,667 2,884,598 shares of the Series D Convertible A Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 all of which are shall be issued and outstanding, (ve) 829,962 4,000,000 shares of Series E B Preferred of which [3,033,878] shall be issued and outstanding, and the remainder of which shall be reserved for future issuances of Series B Preferred, 720,757 of which are issued and outstanding and (vif) 20,000,000 15,000,000 shares of Common Stock, of which 1,146,895 4,097,171 shares are shall be issued and outstanding, 304,950 7,849,584 shares have been shall be reserved for issuance upon conversion of the Series A Preferred Stock and 399,400 950,266 shares have been reserved for issuance upon conversion of the Series B Preferred and 138,650 shares have been reserved for issuance upon conversion of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 shares of Common Stock shall be reserved for issuance upon exercise of the Warrant will represent, as all other Equity Equivalents. All of the Closing, in excess of 7.19% issued and outstanding shares of the Company's Common Stock capital stock have been duly authorized, are validly issued, fully paid, and options on a Fully-Diluted Basisnonassessable, as set forth and are not subject to, nor were they issued in EXHIBIT F heretoviolation of, any preemptive rights or rights of first refusal. As of the First Closing, neither the Company nor any Subsidiary will shall have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stockEquity Equivalents, nor will it shall the Company or any Subsidiary have outstanding any rights or options to subscribe for or to purchase its capital stock or Equity Equivalents or any stock oral or securities convertible into or exchangeable for its capital stockwritten agreement related thereto, except for the Series A PreferredPreferred Stock and except as set forth on the attached "CAPITALIZATION SCHEDULE." The CAPITALIZATION SCHEDULE accurately sets forth the following information with respect to all outstanding Capital Stock and Equity Equivalents: the holder thereof; the class of series and number of shares or Equity Equivalents owned; and in the case of Equity Equivalents, the Series B Preferredclass or series and number of shares of capital stock (or equivalent) obtainable upon exercise thereof, the Series C Preferred, the Series D Preferredexercise price (or equivalent) thereof, and the Series E Preferred and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. as more fully set forth on SCHEDULE 5.2 attached heretoexpiration date thereof. As of the First Closing, neither the Company nor any Subsidiary will shall be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stockstock or any Equity Equivalents, except as set forth on the CAPITALIZATION SCHEDULE and except pursuant to the Certificate of Incorporation. As of the Closing, all of the outstanding shares of the Company's capital stock will be validly issued, fully paid and nonassessable.

Capital Stock and Related Matters. (i) As of the Closing and immediately thereafter, the authorized capital stock of the Company will shall consist of (ia) 1,000 seventeen million four hundred thousand (17,400,000) shares of preferred stock, of which three hundred and fifty two (352) shares shall be designated as Series A Convertible Preferred Stock, $.01 par value (the "Series A Preferred"), 1,000 all of which are shall be issued and outstanding), six million three hundred ninety-nine thousand six hundred forty eight (ii6,399,648) 1,000 shares of will be designated as Series B Convertible Preferred Stock, $.01 par value (the "Series B Preferred"), 1,000 five million seven hundred and seventy six thousand eight hundred and nineteen (5,776,819) of which are will be issued and outstanding, ) and eleven million (iii11,000,000) 1,000 shares of the shall be designated as Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 none of which are will be issued and outstanding, (iv) 1,667 shares of the Series D Convertible Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 shares of Series E Preferred, 720,757 of which are issued and outstanding and (vib) 20,000,000 twenty nine million one hundred thousand (29,100,000) shares of Common Stock, of which 1,146,895 three million five hundred and two thousand five hundred (3,502,500) shares are shall be issued and outstanding, 304,950 twenty three million two hundred and forty seven thousand four hundred and sixty four (23,247,464) shares have been shall be reserved for issuance upon conversion of the Notes, the Series C Preferred, the Series A Preferred and 399,400 the Series B Preferred, and two million three hundred and seven thousand nine hundred and seventy two (2,307,972) shares have been shall be reserved for issuance upon conversion of the Series B Preferred and 138,650 shares have been reserved for issuance upon conversion of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 shares of Common Stock reserved for issuance upon exercise of the Warrant will represent, as of the Closing, in excess of 7.19% of the Company's Common Stock and options on a Fully-Diluted Basis, as set forth in EXHIBIT F heretopursuant to stock option plans. As of the Closing, neither the Company nor any Subsidiary will shall have outstanding any stock or securities convertible or exchangeable for any shares of its capital stockstock or containing any profit participation features, nor will shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except for the Notes, the Series C Preferred, Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. as more fully set forth on SCHEDULE 5.2 the attached hereto"Capitalization Schedule." The Capitalization Schedule accurately sets forth the following with respect to all outstanding options and rights to acquire the Company's capital stock: the holder, the number of shares covered, the exercise price and the expiration date. As of the Closing, neither the Company nor any Subsidiary will shall be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except as set forth on the Capitalization Schedule, except in respect of the Notes and except pursuant to the Certificate of Incorporation. As of the Closing, all of the outstanding shares of the Company's capital stock will shall be validly issued, fully paid and nonassessable.

Capital Stock and Related Matters. As of each of the Closing respective Closings and immediately thereafter, the authorized capital stock of the Company will consist of (i) 1,000 shares of Series A Convertible Preferred Stock, $.01 par value (the "Series A Preferred"), 1,000 of which are issued and outstanding, (ii) 1,000 shares of Series B Convertible Preferred Stock, $.01 par value (the "Series B Preferred"), 1,000 of which are issued and outstanding, (iii) 1,000 shares of the Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are issued and outstanding, (iv) 1,667 shares of the Series D Convertible Preferred Stock, $.0l .01 par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 829,692 shares of Series E Preferred, 720,757 none of which are issued and outstanding prior to the Initial Closing and (vi) 20,000,000 shares of Common Stock, of which 1,146,895 shares are issued and outstanding, 304,950 shares have been reserved for issuance upon conversion of the Series A Preferred and 399,400 shares have been reserved for issuance upon conversion of the Series B Preferred and 138,650 shares have been reserved for issuance upon conversion of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance by all necessary corporate action upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the WarrantPreferred. The 300,000 720,757 shares of Common Stock reserved for issuance upon exercise conversion of the Warrant Series E Preferred will represent, as of the each Closing, in excess of 7.1918.6% of the Company's Common Stock and options on a Fully-Diluted Basis, as set forth in EXHIBIT F D hereto. As of the each Closing, neither the Company nor any Subsidiary will have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock, nor will it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except for the Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant the Option Shares and shares, or any options, rights or warrants to purchase shares, of capital stock of the Company issued to members of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. Company as more fully set forth on SCHEDULE 5.2 6.2 attached hereto. As of the each Closing, neither the Company nor any Subsidiary will be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except pursuant to the Certificate of Incorporation. As of the each Closing, all of the outstanding shares of the Company's capital stock will be validly issued, fully paid and nonassessable.

Capital Stock and Related Matters. As of the Closing and immediately thereafter, the The authorized capital stock --------------------------------- of the Company will consist consists of (i) 1,000 250,000,000 shares of Series A Convertible Common Stock and 5,000,000 shares of Preferred Stock, $.01 par value per share. As of the date hereof, there are (the "i) 100,000 shares of Series A Preferred"), 1,000 of which are Convertible Preferred Stock issued and outstanding, (ii) 1,000 58,352,704 shares of Series B Convertible Preferred Stock, $.01 par value (the "Series B Preferred"), 1,000 of which are Common Stock issued and outstanding, (iii) 1,000 shares of the Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are issued and outstanding, (iv) 1,667 shares of the Series D Convertible Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 shares of Series E Preferred, 720,757 of which are issued and outstanding and (vi) 20,000,000 14,285,714 shares of Common Stock, of which 1,146,895 shares are issued and outstanding, 304,950 shares have been reserved for issuance Stock issuable upon conversion of the Series A Convertible Preferred Stock, (iv) 18,960,074 shares of Common Stock issuable upon the exercise of outstanding stock options and 399,400 shares have been reserved for issuance warrants and upon the conversion or exchange of outstanding convertible or exchangeable securities, excluding the Series B A Convertible Preferred and 138,650 shares have been reserved for issuance upon conversion Stock, (v) an aggregate of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 10,000,000 shares of Common Stock reserved for issuance upon exercise under the Company's Second Amended and Restated 1998 Stock Option Plan, of which 3,676,263 shares remain available for the grant of options and (vi) 367,500 shares of capital stock of the Warrant Company held in the treasury of the Company. All issued and outstanding shares of Common Stock and Series A Convertible Preferred Stock have been duly authorized and are validly issued, fully paid, nonassessable and free of preemptive rights. The Shares, when issued to the Purchasers in accordance with this Agreement, will representbe duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights (except that the Series A Convertible Preferred Stock's preemptive rights will have been exercised as set forth in Exhibit F). Except as set forth above and on Schedule --------- -------- 5.6, as of the Closingdate hereof, in excess of 7.19% of the Company's Common Stock and options on a Fully-Diluted Basis, as set forth in EXHIBIT F hereto. As of the Closing, neither the Company nor any Subsidiary will have there are no outstanding any stock or securities convertible into --- or exchangeable for any shares of capital stock of the Company or any of its capital stockSubsidiaries, nor will it have or any outstanding any rights (either preemptive or options other) to subscribe for or to purchase, or any outstanding options for the purchase its of, or any agreements providing for the issuance (contingent or otherwise) of, or any outstanding calls, commitments or claims of any character relating to, any capital stock of the Company or any of its Subsidiaries or any stock or securities convertible into or exchangeable for its capital stock, except for the Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members or any of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. its Subsidiaries. Except as more fully set forth on SCHEDULE 5.2 attached hereto. As Schedule 5.6, as of the Closingdate ------------ hereof, neither the Company nor any Subsidiary will be of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stockstock or any convertible securities, except pursuant to the Certificate of Incorporation. As rights or options of the Closingtype described in the preceding sentence. Neither the Company nor any of its Subsidiaries is a party to, all or has knowledge of, any agreement restricting the transfer of the outstanding any shares of the Company's capital stock will which would affect the transferability of the Common Stock issuable upon conversion of the Stock. Except as set forth on Schedule 5.6, as of the date hereof, the ------------ Company is not a party to or bound by any agreement or commitment pursuant to which the Company is or could be validly issued, fully paid and nonassessablerequired to register any securities under the Securities Act of 1933.

Capital Stock and Related Matters. As of (i) Immediately prior to the Closing and immediately thereafterClosing, the authorized capital stock of the Company will consist of (ia) 1,000 38,183,850 shares of Preferred Stock, of which 2,630,000 shares will be designated as Series A Preferred Stock (all of which will be issued and outstanding), 4,600,000 shares will be designated as Series B Preferred Stock (all of which will be issued and outstanding), 241,000 shares will be designated as Series C Preferred Stock (all of which will be issued and outstanding), 10,475,420 shares will be designated as Series D Preferred Stock (10,200,420 of which will be issued and outstanding), 3,558,096 shares will be designated as Series E Preferred Stock (all of which will be issued and outstanding), 6,679,334 shares will be designated as Series F Preferred Stock (all of which will be issued and outstanding), 5,000,000 shares will be designated as Series G Preferred (4,969,844 of which will be issued and outstanding) and 5,000,000 shares of Series A Convertible H Preferred Stock, $.01 par value Stock (the "Series A Preferred"), 1,000 none of which are will be issued and outstanding, (ii) 1,000 shares of Series B Convertible Preferred Stock, $.01 par value (the "Series B Preferred"), 1,000 of which are issued and outstanding, (iii) 1,000 shares of the Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are issued and outstanding, (iv) 1,667 shares of the Series D Convertible Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 shares of Series E Preferred, 720,757 of which are issued and outstanding ; and (vib) 20,000,000 70,000,000 shares of Common Stock, of which 1,146,895 6,534,623 shares are will be issued and outstanding, 304,950 2,630,000 shares have been will be reserved for issuance upon conversion of the Series A Preferred and 399,400 Stock, 5,366,309 shares have been will be reserved for issuance upon conversion of the outstanding Series B Preferred and 138,650 Stock, 10,475,420 shares have been will be reserved for issuance upon conversion of the outstanding or reserved Series C D Preferred and 335,100 Stock, 3,558,096 shares have been will be reserved for issuance upon conversion of the outstanding Series D E Preferred and 720,757 Stock, 6,679,334 shares have been will be reserved for issuance upon conversion of the outstanding Series E F Preferred and 300,000 Stock, 4,959,844 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 shares of Common Stock will be reserved for issuance upon exercise conversion of the Warrant outstanding Series G Preferred, 5,000,000 shares will represent, as be reserved for issuance upon conversion of the Closingoutstanding Series H Preferred and 5,504,624 shares will be reserved for future issuance to employees, in excess of 7.19% of the Company's Common directors or consultants pursuant to Executive Stock and options on a Fully-Diluted Basis, as set forth in EXHIBIT F heretoAgreements. As of the Closing, neither the Company nor any Subsidiary will not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock, nor will it have outstanding or any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except for the Series A PreferredPreferred Stock, the Series B PreferredPreferred Stock, the Series C Preferred, the Series D PreferredPreferred Stock, and the Series E Preferred Stock, Series F Preferred Stock, Series G Preferred Stock and except for this Warrant and any optionsSeries H Preferred Stock, rights or warrants a warrant to purchase shares275,000 shares of Series D Preferred Stock, and options to purchase an aggregate of capital stock approximately 4,077,809 shares of the Company issued to members of the board of directorsCommon Stock held by employees and directors of, employeesor consultants to, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. as more fully set forth on SCHEDULE 5.2 attached hereto. As of the Closing, neither the Company nor any Subsidiary will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except pursuant to the Certificate of IncorporationIncorporation and the Executive Stock Agreements. As of the Closing, all of the outstanding shares of the Company's capital stock will be validly issued, fully paid and nonassessable.

Capital Stock and Related Matters. As of Immediately following the Closing and immediately thereafterClosing, (a) the authorized capital stock of the Company will consist of (i) 1,000 600,000 shares of Series Class A Convertible Preferred Voting Common Stock, par value $.01 par value (the "Series A Preferred")per share, 1,000 of which are 5,250 shares will be issued and outstanding, (ii) 1,000 100,000 shares of Series Class B Convertible Preferred Voting Common Stock, $.01 par value (the "Series B Preferred")$.0l per share, 1,000 of which are 5,100 shares will be issued and outstanding, (iii) 1,000 100,000 shares of the Series Class C Convertible Preferred Non-Voting Common Stock, par value $.01 par value (the "Series C Preferred")per share, 1,000 of which are 69,900 shares will be issued and outstanding, (iv) 1,667 100,000 shares of the Series Class D Convertible Preferred Non-Voting Common Stock, $.0l par value (the "Series D Preferred")$.01 per share, 1,667 of which are no shares will be issued and outstandingoutstanding and 27,484 shares will be reserved for issuance upon the exercise of certain warrants held by Electra and The Provident Bank, (v) 829,962 200,000 shares of Series Class E PreferredNon-Voting Common Stock, 720,757 par value $.01 per share, of which are 1,648 shares will be issued and outstanding and (vi) 20,000,000 13,400 shares of Common Stock, of which 1,146,895 shares are issued and outstanding, 304,950 shares have been will be reserved for issuance upon conversion exercise of the Series A Preferred and 399,400 certain management stock options, 1,315 shares have been will be reserved for issuance upon conversion of the Series B Preferred and 138,650 shares have been reserved for issuance upon conversion of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. certain warrants held by The 300,000 Provident Bank and 45,110 shares of Common Stock will be reserved for issuance upon exercise of the Warrant Warrants and certain other warrants, (vi) 50,000 shares of Series A Preferred Stock, par value $.01 per share, of which 7,852 shares will representbe issued and outstanding, as (vii) 1,000 shares of Series B Preferred Stock, par value $.01 per share, none of which shares will be issued and outstanding, (viii) 5,000 shares of Series C Preferred Stock, par value $.01 per share, of which 4,954 shares of Series C Preferred Stock will be issued to Electra and outstanding, and (ix) 25,000 shares of Series D Preferred Stock, par value $.01 per share, per share, of which 21,125 shares will be issued and outstanding and 1,375 shares will be reserved for issuance upon the closing of unconsummated Subsequent Investments, (b) no shares of Common Stock will be owned or held by or for the account of the Closing, in excess Company; (c) all of 7.19% the issued and outstanding shares of the Company's Capital Stock will be validly issued and outstanding, fully paid and non-assessable and will be owned of record (other than shares attributable to Xxxxxxx, which shall be owned of record by First Chicago, Custodian, Xxxxxxx X. Xxxxxxx XXX) and, to the best knowledge of the Company, beneficially, free and clear of any Liens (except as may be contemplated by the Senior Loan Documents) by the individuals and entities and in the amounts set forth on Schedule 1 and Schedule 8.3 hereof; (d) except for the Class A Voting Common Stock, the Class B Voting Common Stock, the Class C Non-Voting Common Stock, warrants for the Class D Non-Voting Common Stock, the Class E Non-Voting Common Stock and certain warrants and options on a Fullyfor the Class E Non-Diluted BasisVoting Common Stock, the Series A Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, and the Warrants, and except as set forth in EXHIBIT F on Schedule 8.3 hereto. As , the Company has no, and at the time of the Initial Closing, neither the Company nor any Subsidiary will have not have, outstanding any stock or securities convertible into or exchangeable for any shares of its capital stockCapital Stock, nor will it have or any outstanding any rights (either preemptive or options other) to subscribe for or to purchase, or any outstanding options for the purchase its capital stock of, or any agreements providing for the issuance (contingent or otherwise) of, or any outstanding calls, commitments or claims of any character relating to, any Capital Stock or any stock or securities convertible into or exchangeable for its capital stock, except for the Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members of the board of directors, employees, consultants and advisors Capital Stock of the Company, and GE or any outstanding demand or piggyback registration rights to register any Capital Equity Investments, Inc. as more fully set forth on SCHEDULE 5.2 attached hereto. As Stock or any stock or securities convertible into or exchangeable for the Capital Stock of the ClosingCompany (other than rights of certain Purchasers which have been waived or are being waived simultaneously herewith); (e) except with respect to the Series C Preferred Stock, neither the Series A Preferred Stock and the Series D Preferred Stock, the Company nor any Subsidiary will not be subject to any obligation (contingent or otherwiseother) to repurchase or repurchase, otherwise acquire or retire any shares of its capital stockCapital Stock; and (f) the Company has no knowledge of any agreement (except as set forth in this Agreement, except pursuant to the Certificate Electra Securities Agreement or the Stockholders Agreement) restricting the transfer of Incorporation. As of the Closing, all of the outstanding any shares of the Company's capital stock will be validly issuedCapital Stock, fully paid except as set forth on Schedule 8.3. Schedule 8.3 sets forth the number of shares of Capital Stock, the holders thereof, and nonassessablethe percentage held by each holder of the issued and outstanding Capital Stock of the Company and each Subsidiary at the time of the Closing of the Initial Investment and after giving effect to the Initial Investment.

Capital Stock and Related Matters. As At the time of the Closing --------------------------------- and immediately thereafterafter giving effect to the Acquisition and the transactions contemplated by this Agreement, (i) the authorized capital stock of the Company will consist of (ia) 1,000 500,000 shares of Series Class A Convertible Preferred Voting Common Stock, par value $.01 par value (the "Series A Preferred")per share, 1,000 of which are 5,250 shares will be issued and outstanding, (iib) 100,000 shares of Class B Voting Common Stock, par value $.01 per share, of which 5,100 shares will be issued and outstanding, (c) 100,000 shares of Class C Non-voting Common Stock, par value $.01 per share, of which 69,900 shares will be issued and outstanding, (d) 100,000 shares of Class D Non-voting Common Stock, par value $.01 per share, of which no shares will be issued and outstanding and 25,295 shares will be reserved for issuance upon the exercise of the Warrants, (e) 100,000 shares of Class E Non-voting Common Stock, par value $.01 per share, of which no shares will be issued and outstanding, (f) 50,000 shares of Series A Preferred Stock, par value $.01 per share, of which 7,850 shares will be issued and outstanding, (g) 1,000 shares of Series B Convertible Preferred Stock, par value $.01 par value (the "Series B Preferred")per share, 1,000 none of which are shares will be issued and outstanding, (h) 500 shares of Series C Preferred Stock, par value $.01 per share, of which 500 shares of Series C Preferred Stock will be issued to Electra and outstanding, and (i) 10,000 shares of Undesignated Preferred Stock, par value $.01 per share, of which no shares will be issued and outstanding; (ii) no shares of Common Stock will be owned or held by or for the account of the Company; (iii) 1,000 all of the outstanding shares of Common Stock and Preferred Stock (including without limitation the Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are ) will be validly issued and outstanding, fully paid and non-assessable and will be owned of record and, to the best knowledge of the Company, beneficially, free and clear of any Liens (except as may be contemplated by the Senior Loan Documents) by the individuals and entities and in the amounts set forth on Schedule 1 and Schedule 8.3 hereto; (iv) 1,667 shares of except ---------- ------------ for the Series D Convertible Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 shares of Series E Preferred, 720,757 of which are issued and outstanding and (vi) 20,000,000 shares of Class A Voting Common Stock, of which 1,146,895 shares are issued and outstandingthe Class B Voting Common Stock, 304,950 shares have been reserved for issuance upon conversion of the Class C Non-voting Common Stock, the Class D Non-voting Common Stock, the Class E Non- voting Common Stock, the Series A Preferred and 399,400 shares have been reserved for issuance upon conversion of the Series B Preferred and 138,650 shares have been reserved for issuance upon conversion of Stock, the Series C Preferred Stock, and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred Warrants, and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 shares of Common Stock reserved for issuance upon exercise of the Warrant will represent, as of the Closing, in excess of 7.19% of the Company's Common Stock and options on a Fully-Diluted Basis, except as set forth in EXHIBIT F on Schedule 8.3 hereto. As , the Company ------------ has no, and at the time of the ClosingClosing will not have, neither the Company nor any Subsidiary will have outstanding any stock or securities convertible into or exchangeable for any shares of its capital stockCapital Stock, nor will it have or any outstanding any rights (either preemptive or options other) to subscribe for or to purchase, or any outstanding options for the purchase its capital stock of, or any agreements providing for the issuance (contingent or otherwise) of, or any outstanding calls, commitments or claims of any character relating to, any Capital Stock or any stock or securities convertible into or exchangeable for its capital stockany Capital Stock of the Company, except or any outstanding demand or piggyback registration rights to register any Capital Stock or any stock or securities convertible into or exchangeable for the Series A Preferred, Capital Stock of the Series B PreferredCompany; (v) except with respect to the Warrants, the Series C Preferred, the Series D Preferred, Preferred Stock and the Series E A Preferred and except for this Warrant and any optionsStock, rights or warrants to purchase shares, of capital stock of the Company issued to members of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. as more fully set forth on SCHEDULE 5.2 attached hereto. As of the Closing, neither the Company nor any Subsidiary will not be subject to any obligation (contingent or otherwiseother) to repurchase or repurchase, otherwise acquire or retire any shares of its capital stock, Capital Stock; and (vi) the Company has no knowledge of any agreement (except pursuant to as set forth in this Agreement or the Certificate Stockholders Agreement) restricting the transfer of Incorporation. As of the Closing, all of the outstanding any shares of the Company's capital stock will be validly issuedCapital Stock, fully paid except as set forth on Schedule 8.3. Schedule ------------ -------- 8.3 sets forth the number of shares of Capital Stock, the holders thereof, and nonassessable--- the percentage held by each holder of the issued and outstanding Capital Stock of the Company and each Subsidiary at the time of the Closing and after giving effect to the Acquisition and the transactions contemplated by this Agreement.

Capital Stock and Related Matters. As At the time of the Closing and immediately thereafterof the Initial Investment, (a) the authorized capital stock of the Company will consist of (i) 1,000 500,000 shares of Series Class A Convertible Preferred Voting Common Stock, par value $.01 par value (the "Series A Preferred")per share, 1,000 of which are 5,250 shares will be issued and outstanding, (ii) 1,000 100,000 shares of Series Class B Convertible Preferred Voting Common Stock, $.01 par value (the "Series B Preferred")$.0l per share, 1,000 of which are 5,100 shares will be issued and outstanding, (iii) 1,000 100,000 shares of the Series Class C Convertible Preferred Non-Voting Common Stock, par value $.01 par value (the "Series C Preferred")per share, 1,000 of which are 69,900 shares will be issued and outstanding, (iv) 1,667 100,000 shares of the Series Class D Convertible Preferred Non-Voting Common Stock, $.0l par value (the "Series D Preferred")$.01 per share, 1,667 of which are no shares will be issued and outstandingoutstanding and 27,484 shares will be reserved for issuance upon the exercise of certain warrants held by Electra and The Provident Bank, (v) 829,962 100,000 shares of Series Class E PreferredNon-Voting Common Stock, 720,757 par value $.01 per share, of which are 1,648 shares will be issued and outstanding and (vi) 20,000,000 13,400 shares of Common Stock, of which 1,146,895 shares are issued and outstanding, 304,950 shares have been will be reserved for issuance upon conversion exercise of the Series A Preferred and 399,400 certain management stock options, 490 shares have been will be reserved for issuance upon conversion of the Series B Preferred and 138,650 shares have been reserved for issuance upon conversion of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. certain warrants held by The 300,000 Provident Bank and 8,924 shares of Common Stock will be reserved for issuance upon exercise of the Warrant Warrants, (vi) 50,000 shares of Series A Preferred Stock, par value $.01 per share, of which 7,852 shares will representbe issued and outstanding, as (vii) 1,000 shares of Series B Preferred Stock, par value $.01 per share, none of which shares will be issued and outstanding, (viii) 5,000 shares of Series C Preferred Stock, par value $.01 per share, of which 4,954 shares of Series C Preferred Stock will be issued to Electra and outstanding, and (ix) 10,000 shares of Series D Preferred Stock, par value $.01 per share, per share, of which 2,000 shares will be issued and outstanding, (b) no shares of Common Stock will be owned or held by or for the account of the Closing, in excess Company; (c) all of 7.19% the issued and outstanding shares of the Company's Capital Stock will be validly issued and outstanding, fully paid and non-assessable and will be owned of record (other than shares attributable to Xxxxxxx, which shall be owned of record by First Chicago, Custodian, Xxxxxxx X. Xxxxxxx XXX) and, to the best knowledge of the Company, beneficially, free and clear of any Liens (except as may be contemplated by the Senior Loan Documents) by the individuals and entities and in the amounts set forth on Schedule 1 and Schedule 8.3 hereof; (d) ---------- ------------ except for the Class A Voting Common Stock, the Class B Voting Common Stock, the Class C Non-Voting Common Stock, warrants for the Class D Non-Voting Common Stock, the Class E Non-Voting Common Stock and certain warrants and options on a Fullyfor the Class E Non-Diluted BasisVoting Common Stock, the Series A Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, and the Warrants, and except as set forth in EXHIBIT F on Schedule 8.3 hereto. As , the Company has no, and at the time of the Closing------------ Closing of the Initial Investment will not have, neither the Company nor any Subsidiary will have outstanding any stock or securities convertible into or exchangeable for any shares of its capital stockCapital Stock, nor will it have or any outstanding any rights (either preemptive or options other) to subscribe for or to purchase, or any outstanding options for the purchase its capital stock of, or any agreements providing for the issuance (contingent or otherwise) of, or any outstanding calls, commitments or claims of any character relating to, any Capital Stock or any stock or securities convertible into or exchangeable for its capital stock, except for the Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members of the board of directors, employees, consultants and advisors Capital Stock of the Company, and GE or any outstanding demand or piggyback registration rights to register any Capital Equity Investments, Inc. as more fully set forth on SCHEDULE 5.2 attached hereto. As Stock or any stock or securities convertible into or exchangeable for the Capital Stock of the ClosingCompany (other than rights of certain Purchasers which have been waived or are being waived simultaneously herewith); (e) except with respect to the Series C Preferred Stock, neither the Series A Preferred Stock and the Series D Preferred Stock, the Company nor any Subsidiary will not be subject to any obligation (contingent or otherwiseother) to repurchase or repurchase, otherwise acquire or retire any shares of its capital stockCapital Stock; and (f) the Company has no knowledge of any agreement (except as set forth in this Agreement, except pursuant to the Certificate Electra Securities Agreement or the Stockholders Agreement) restricting the transfer of Incorporation. As of the Closing, all of the outstanding any shares of the Company's capital stock will be validly issuedCapital Stock, fully paid except as set forth on Schedule 8.3. Schedule 8.3 sets forth the ------------ ------------ number of shares of Capital Stock, the holders thereof, and nonassessablethe percentage held by each holder of the issued and outstanding Capital Stock of the Company and each Subsidiary at the time of the Closing of the Initial Investment and after giving effect to the Initial Investment.

Capital Stock and Related Matters. (a) As of the Closing and immediately thereafterdate of this Agreement, the authorized capital stock of the Company will consist MCK consists of (i) 1,000 21,000,000 shares of preferred stock: 14,985,733 of which are designated as Series A Redeemable Preferred Stock, 13,333,333 of which were issued as of June 27, 1996 and 1,652,400 of which were issued as of the date hereof and all of which are outstanding; 3,968,384 of which are designated Series B Convertible Preferred Stock, $.01 par value all of which were issued as of June 27, 1996 and are outstanding; 28,505 shares of Series C Redeemable Stock, none of which is issued or outstanding; and 1,672,354 shares of Series D Convertible Stock, none of which is issued or outstanding and (ii) 25,000,000 shares of Common Stock, of which 2,491,406 shares are issued and outstanding (including 1,305,229 shares of Common Stock issued to officers, directors, employees and one former employee of the "Series Company pursuant to restricted stock agreements). As of the date of this Agreement, the authorized capital stock of MCK Canada consists of 12,151,000 shares of Class A Preferred")Common Stock, 1,000 all of which are issued and outstanding, (ii) 1,000 and 20,000 shares of Series B Convertible Class E Redeemable Preferred Stock, $.01 par value (the "Series B Preferred"), 1,000 all of which are issued and outstanding. Neither MCK nor any Subsidiary has, (iii) 1,000 shares of the Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are issued and outstanding, (iv) 1,667 shares of the Series D Convertible Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 shares of Series E Preferred, 720,757 of which are issued and outstanding and (vi) 20,000,000 shares of Common Stock, of which 1,146,895 shares are issued and outstanding, 304,950 shares or will have been reserved for issuance upon conversion of the Series A Preferred and 399,400 shares have been reserved for issuance upon conversion of the Series B Preferred and 138,650 shares have been reserved for issuance upon conversion of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 shares of Common Stock reserved for issuance upon exercise of the Warrant will represent, as of the Closing, in excess of 7.19% of the Company's Common Stock and options on a Fully-Diluted Basis, as set forth in EXHIBIT F hereto. As of the Closing, neither the Company nor any Subsidiary will have outstanding any stock or securities convertible or exchangeable for any shares of its capital stockstock or containing any profit participation features, nor does it have, or will it have as of the Closing, outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except for the Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant and stock or any options, stock appreciation rights or warrants phantom stock plans, other than options to purchase shares673,061 shares of Common Stock reserved for issuance pursuant to the Company's 1996 Stock Option Plan, of capital stock which options to purchase 361,320 shares of the Company Common Stock are presently issued and outstanding and options to members purchase 217,046 shares of the board of directorsCommon Stock have been issued and exercised. Neither MCK nor any Subsidiary is, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. or will be as more fully set forth on SCHEDULE 5.2 attached hereto. As of the Closing, neither the Company nor any Subsidiary will be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except pursuant to the Certificate Articles of Incorporation, the Amended and Restated Stockholders Agreement and the Put/Call Option Agreement dated as of June 27, 1996 by and among MCK, MDI and the escrow agent named therein. As of the Closing, all All of the outstanding shares of the CompanyMCK's capital stock are validly issued, fully paid and nonassessable. The shares of Purchased Stock issued pursuant to this Agreement, when issued at the Closing in accordance with the terms of this Agreement, and the Conversion Shares, when issued upon conversion of the Series D Convertible Stock in accordance with the terms thereof, will be validly issued, fully paid and nonassessable.

Capital Stock and Related Matters. As of the Closing and --------------------------------- immediately thereafter, the authorized capital stock of the Company will shall consist of (ia) 1,000 seventeen million four hundred thousand (17,400,000) shares of preferred stock, of which three hundred and fifty-two (352) shares shall be designated as Series A Convertible Preferred Stock, $.01 par value (the "Series A Preferred"), 1,000 all of which are shall be issued and outstanding), six million three hundred ninety-nine thousand six hundred forty-eight (ii6,399,648) 1,000 shares of will be designated as Series B Convertible Preferred Stock, $.01 par value (the "Series B Preferred"), 1,000 five million seven hundred and thirty-five thousand two hundred and fifty- one (5,735,251) of which are will be issued and outstanding, ) and eleven million (iii11,000,000) 1,000 shares of the shall be designated as Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 8,005,689 of which are will be issued and outstanding, (iv) 1,667 shares of the Series D Convertible Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 shares of Series E Preferred, 720,757 of which are issued and outstanding and (vib) 20,000,000 forty million (40,000,000) shares of Common Stock, of which 1,146,895 three million five hundred and two thousand six hundred fifty (3,502,650) shares are shall be issued and outstanding, 304,950 28,351,647 shares have been shall be reserved for issuance upon conversion of the Notes, the Series C Preferred, the Series A Preferred and 399,400 the Series B Preferred, and two million three hundred and seven thousand nine hundred and seventy-two (2,307,972) shares have been shall be reserved for issuance upon conversion of the Series B Preferred and 138,650 shares have been reserved for issuance upon conversion of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 shares of Common Stock reserved for issuance upon exercise of the Warrant will represent, as of the Closing, in excess of 7.19% of the Company's Common Stock and options on a Fully-Diluted Basis, as set forth in EXHIBIT F heretopursuant to stock option plans. As of the Closing, neither the Company nor any Subsidiary will shall have outstanding any stock or securities convertible or exchangeable for any shares of its capital stockstock or containing any profit participation features, nor will shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except for the Notes, the Series C Preferred, Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred Warrants and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. as more fully set forth on SCHEDULE 5.2 the attached hereto"Capitalization Schedule." The Capitalization Schedule accurately sets forth the following with respect to all outstanding options and rights to acquire the Company's capital stock: the holder, the number of shares covered, the exercise price and the expiration date. As of the Closing, neither the Company nor any Subsidiary will shall be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except as set forth on the Capitalization Schedule, except in respect of the Senior Notes, the Warrants, Notes and except pursuant to the Certificate of Incorporation. As of the Closing, all of the outstanding shares of the Company's capital stock will shall be validly issued, fully paid and nonassessablenonassessable and not subject to any preemptive rights except as set forth in the Stockholders Agreement (as defined below) and the Certificate of Incorporation. Except as set forth in (a) the Purchase Agreement dated October 3, 1997 between the Company and the Purchasers listed therein (as amended to the date hereof, the "Series C Purchase Agreement"), (b) the Purchase Agreement dated November 22, 1996 between the Company and the holders of the Series B Preferred (as amended to the date hereof, the "Series B Purchase Agreement"), (c) the Registration Agreement, (d) the Stockholders Agreement dated as of October 3, 1997 between the Company and the investors party thereto (as amended to the date hereof, the "Stockholders Agreement"), (e) the Purchase Agreement dated June 27, 1996 between the Company and the holders of the Series A Preferred (as amended to the date hereof, the "Series A Purchase Agreement") and (e) the Company's existing certificate of incorporation, all of which have been waived, there are no statutory or contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Notes hereunder or the issuance of any series of capital stock of the Company. The Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Notes hereunder does not require registration under the Securities Act or any applicable state securities laws. To the best of the Company's knowledge, there are no agreements between the Company's stockholders with respect to the voting or transfer of the Company's capital stock or with respect to any other aspect of the Company's affairs, except for the Stockholders Agreements between the Company and certain of its stockholders, and the stock option agreements set forth on the Capitalization Schedule. Except as set forth in the Indenture, the Registration Agreement, the Warrant Agreement, and the Note Registration Agreement dated the date hereof between the Company and State Street Bank and Trust Company, as trustee (the "Notes Registration 18 Rights Agreement"), the Company is not under any obligation to register any of its currently outstanding securities or any of its securities which may hereafter be issued.

Capital Stock and Related Matters. As of the Closing and immediately thereafter, the The authorized capital stock of the Company will consist consists of (i) 1,000 250,000,000 shares of Series A Convertible Common Stock and 5,000,000 shares of Preferred Stock, $.01 par value per share. As of the date hereof, there are (the "i) 100,000 shares of Series A Preferred"), 1,000 of which are Convertible Preferred Stock issued and outstanding, (ii) 1,000 58,352,704 shares of Series B Convertible Preferred Stock, $.01 par value (the "Series B Preferred"), 1,000 of which are Common Stock issued and outstanding, (iii) 1,000 shares of the Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are issued and outstanding, (iv) 1,667 shares of the Series D Convertible Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 shares of Series E Preferred, 720,757 of which are issued and outstanding and (vi) 20,000,000 14,285,714 shares of Common Stock, of which 1,146,895 shares are issued and outstanding, 304,950 shares have been reserved for issuance Stock issuable upon conversion of the Series A Convertible Preferred Stock, (iv) 18,960,074 shares of Common Stock issuable upon the exercise of outstanding stock options and 399,400 shares have been reserved for issuance warrants and upon the conversion or exchange of outstanding convertible or exchangeable securities, excluding the Series B A Convertible Preferred and 138,650 shares have been reserved for issuance upon conversion Stock, (v) an aggregate of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 10,000,000 shares of Common Stock reserved for issuance upon exercise under the Company's Second Amended and Restated 1998 Stock Option Plan, of which 3,676,263 shares remain available for the grant of options and (vi) 367,500 shares of capital stock of the Warrant Company held in the treasury of the Company. All issued and outstanding shares of Common Stock and Series A Convertible Preferred 8 Stock have been duly authorized and are validly issued, fully paid, nonassessable and free of preemptive rights. The Shares, when issued to the Purchasers in accordance with this Agreement, will representbe duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights (except that the Series A Convertible Preferred Stock's preemptive rights will have been exercised as set forth in Exhibit F). Except as set forth above and on Schedule 5.6, as of the Closingdate hereof, in excess of 7.19% of the Company's Common Stock and options on a Fully-Diluted Basis, as set forth in EXHIBIT F hereto. As of the Closing, neither the Company nor any Subsidiary will have there are no outstanding any stock or securities convertible into or exchangeable for any shares of capital stock of the Company or any of its capital stockSubsidiaries, nor will it have or any outstanding any rights (either preemptive or options other) to subscribe for or to purchase, or any outstanding options for the purchase its of, or any agreements providing for the issuance (contingent or otherwise) of, or any outstanding calls, commitments or claims of any character relating to, any capital stock of the Company or any of its Subsidiaries or any stock or securities convertible into or exchangeable for its capital stock, except for the Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members or any of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. its Subsidiaries. Except as more fully set forth on SCHEDULE 5.2 attached hereto. As Schedule 5.6, as of the Closingdate hereof, neither the Company nor any Subsidiary will be of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stockstock or any convertible securities, except pursuant to the Certificate of Incorporation. As rights or options of the Closingtype described in the preceding sentence. Neither the Company nor any of its Subsidiaries is a party to, all or has knowledge of, any agreement restricting the transfer of the outstanding any shares of the Company's capital stock will which would affect the transferability of the Common Stock issuable upon conversion of the Stock. Except as set forth on Schedule 5.6, as of the date hereof, the Company is not a party to or bound by any agreement or commitment pursuant to which the Company is or could be validly issued, fully paid and nonassessablerequired to register any securities under the Securities Act of 1933.

Capital Stock and Related Matters. As of the Closing Date, and immediately thereafterafter giving effect to the transactions contemplated hereby and pursuant to the Related Documents, (i) the authorized capital stock of the Company will consist of a total of 50,000,000 shares as follows: (ia) 1,000 2,100,572 shares of Series A Convertible Preferred Common Stock, $.01 par value (the "Series A Preferred")$.001 per share, 1,000 of which 6,741,413 shares are issued and outstanding, (ii) 1,000 2,042,986 shares of Series B Convertible which are reserved for issuance upon the exercise of the Warrants, and 6,387,160 shares of which are reserved for issuance to holders of Warrants and options; (b) 25,000,000 shares of Preferred Stock, $.01 par value (the "Series B Preferred")$.001 per share, 1,000 of which are issued and outstanding, 3,600 shares have been designated Series A Preferred Stock (iii) 1,000 2,000 shares of the Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are issued and outstanding, (iv) 1,667 shares of the Series D Convertible Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 shares of Series E Preferred, 720,757 of which are issued and outstanding and of which 15,000 shares have been designated Series B Preferred Stock (vi) 20,000,000 15,000 shares of Common Stock, of which 1,146,895 shares are issued and outstanding, 304,950 ); (ii) all issued and outstanding shares shall have been reserved for issuance upon conversion duly and validly issued, fully paid and non-assessable; (iii) no shares of capital stock of the Series A Preferred and 399,400 shares have been reserved Company will be owned or held by or for issuance upon conversion the account of the Series B Preferred and 138,650 shares have been reserved for issuance upon conversion Company or any of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 shares of Common Stock reserved for issuance upon exercise of the Warrant will represent, as of the Closing, in excess of 7.19% of the Company's Common Stock and options on a Fully-Diluted Basis, its Subsidiaries; (iv) except as set forth in EXHIBIT F hereto. As of the Closingon Schedule 10C, neither the Company nor any Subsidiary of the Guarantors will have outstanding any stock or securities convertible into or exchangeable for any shares of its capital stock, nor will it have outstanding stock or any rights (either preemptive or options other) to subscribe for or to purchase, or any options for the purchase its of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any other character relating to the issuance of, any capital stock stock, or any stock or securities convertible into or exchangeable for its any capital stock, ; (v) except for the Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. as more fully set forth on SCHEDULE 5.2 attached hereto. As of the ClosingSchedule 10C, neither the Company nor any Subsidiary of the Guarantors will be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or warrants or options to purchase shares of its capital stock; (vi) except as set forth on Schedule 10C, except pursuant to neither the Certificate of Incorporation. As Company nor any of the ClosingGuarantors is a party to any agreement (other than this Agreement, all the Securityholders Agreement and the Registration Rights Agreement) restricting the transfer of any shares of its capital stock; and (vii) except as set forth on Schedule 10C and except for the outstanding shares Common Stock of the Company's capital stock , neither the Company nor any of the Guarantors will have filed or be validly issuedrequired to file, fully paid and nonassessablepursuant to Section 12 of the Exchange Act, a registration statement relating to any class of debt or equity securities as of the date hereof.

Capital Stock and Related Matters. As of the Closing Date, and immediately thereafterafter giving effect to the transactions contemplated hereby and pursuant to the Related Documents, (i) the authorized capital stock of the Company will consist of a total of 35,000,000 shares as follows: (ia) 1,000 shares of Series A Convertible Preferred Stock, $.01 par value (the "Series A Preferred"), 1,000 of which are issued and outstanding, (ii) 1,000 shares of Series B Convertible Preferred Stock, $.01 par value (the "Series B Preferred"), 1,000 of which are issued and outstanding, (iii) 1,000 shares of the Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are issued and outstanding, (iv) 1,667 shares of the Series D Convertible Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 shares of Series E Preferred, 720,757 of which are issued and outstanding and (vi) 20,000,000 30,000,000 shares of Common Stock, par value $.001 per share, of which 1,146,895 4,663,992 shares are issued and outstanding, 304,950 the ownership and the consideration paid for such shares have been is as set forth on Schedule 10C to Amendment No. 1 hereto and 1,397,238 shares of which are reserved for issuance upon conversion of the Series A Convertible Preferred Stock and 399,400 485,382 shares have been reserved for issuance upon conversion of the Series B Preferred and 138,650 shares have been which are reserved for issuance upon conversion of the Series C Convertible Preferred Stock and 335,100 (b) 1,244,737 shares of Series A Convertible Preferred Stock, par value $.001 per share, of which 1,244,737 shares are issued and outstanding and 485,382 shares of Series C Convertible Preferred Stock, par value $.001 per share, of which 485,382 shares are issued and outstanding; (ii) all issued and outstanding shares shall have been reserved for issuance upon conversion of the Series D Preferred duly and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred validly issued, fully paid and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 non-assessable; (iii) no shares of Common Stock reserved or Series A or C Convertible Preferred Stock will be owned or held by or for issuance upon exercise the account of the Warrant will represent, as Company or any of the Closing, in excess of 7.19% of the Company's Common Stock and options on a Fully-Diluted Basis, its Subsidiaries; (iv) except as set forth in EXHIBIT F on Schedule 10C to Amendment No. 1 hereto. As of the Closing, neither the Company nor any Subsidiary of its Subsidiaries will have outstanding any stock or securities convertible into or exchangeable for any shares of its capital stock, nor will it have outstanding stock or any rights (either preemptive or options other) to subscribe for or to purchase, or any options for the purchase its of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any other character relating to the issuance of, any capital stock stock, or any stock or securities convertible into or exchangeable for its any capital stock, ; (v) except for the Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. as more fully set forth on SCHEDULE 5.2 attached Schedule 10C to Amendment No. 1 hereto. As of the Closing, neither the Company nor any Subsidiary of its Subsidiaries will be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or warrants or options to purchase shares of its capital stock; (vi) except as set forth on Schedule 10C to Amendment No. 1 hereto, except neither the Company nor any of its Subsidiaries is a party to any agreement (other than this Agreement and the Securityholders Agreement) restricting the transfer of any shares of its capital stock; and (vii) neither the Company nor any of its Subsidiaries will have filed or be required to file, pursuant to the Certificate of Incorporation. As Section 12 of the ClosingExchange Act, all a registration statement relating to any class of debt or equity securities as of the outstanding shares of the Company's capital stock will be validly issued, fully paid and nonassessabledate hereof."

Capital Stock and Related Matters. As of the Closing and immediately thereafter, the The authorized capital stock of the Company will consist consists of (i) 1,000 250,000,000 shares of Series A Convertible Common Stock and 5,000,000 shares of Preferred Stock, $.01 par value per share. As of the date hereof, there are (the "i) 100,000 shares of Series A Preferred"), 1,000 of which are Convertible Preferred Stock issued and outstanding, (ii) 1,000 58,352,704 shares of Series B Convertible Preferred Stock, $.01 par value (the "Series B Preferred"), 1,000 of which are Common Stock issued and outstanding, (iii) 1,000 shares of the Series C Convertible Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are issued and outstanding, (iv) 1,667 shares of the Series D Convertible Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are issued and outstanding, (v) 829,962 shares of Series E Preferred, 720,757 of which are issued and outstanding and (vi) 20,000,000 14,285,714 shares of Common Stock, of which 1,146,895 shares are issued and outstanding, 304,950 shares have been reserved for issuance Stock issuable upon conversion of the Series A Convertible Preferred Stock, (iv) 18,960,074 shares of Common Stock issuable upon the exercise of outstanding stock options and 399,400 shares have been reserved for issuance warrants and upon the conversion or exchange of outstanding convertible or exchangeable securities, excluding the Series B A Convertible Preferred and 138,650 shares have been reserved for issuance upon conversion Stock, (v) an aggregate of the Series C Preferred and 335,100 shares have been reserved for issuance upon conversion of the Series D Preferred and 720,757 shares have been reserved for issuance upon conversion of the Series E Preferred and 300,000 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 10,000,000 shares of Common Stock reserved for issuance upon exercise under the Company's Second Amended and Restated 1998 Stock Option Plan, of which 3,676,263 shares remain available for the grant of options and (vi) 367,500 shares of capital stock of the Warrant will represent, as of Company held in the Closing, in excess of 7.19% treasury of the Company's . All issued and outstanding shares of Common Stock and options on a Fully-Diluted BasisSeries A Convertible Preferred Stock have been duly authorized and are validly issued, fully paid, nonassessable and free of preemptive rights. The Shares, when issued to the Purchasers in accordance with this Agreement, will be duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights (except that the Series A Convertible Preferred Stock's preemptive rights will have been exercised as set forth in EXHIBIT F heretoF). As Except as set forth above and on SCHEDULE 5.6, as of the Closingdate hereof, neither the Company nor any Subsidiary will have there are no outstanding any stock or securities convertible into or exchangeable for any shares of capital stock of the Company or any of its capital stockSubsidiaries, nor will it have or any outstanding any rights (either preemptive or options other) to subscribe for or to purchase, or any outstanding options for the purchase its of, or any agreements providing for the issuance (contingent or otherwise) of, or any outstanding calls, commitments or claims of any character relating to, any capital stock of the Company or any of its Subsidiaries or any stock or securities convertible into or exchangeable for its capital stock, except for the Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members or any of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. its Subsidiaries. Except as more fully set forth on SCHEDULE 5.2 attached hereto. As 5.6, as of the Closingdate hereof, neither the Company nor any Subsidiary will be of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stockstock or any convertible securities, except pursuant to the Certificate of Incorporation. As rights or options of the Closingtype described in the preceding sentence. Neither the Company nor any of its Subsidiaries is a party to, all or has knowledge of, any agreement restricting the transfer of the outstanding any shares of the Company's capital stock will which would affect the transferability of the Common Stock issuable upon conversion of the Stock. Except as set forth on SCHEDULE 5.6, as of the date hereof, the Company is not a party to or bound by any agreement or commitment pursuant to which the Company is or could be validly issued, fully paid and nonassessablerequired to register any securities under the Securities Act of 1933.

Capital Stock and Related Matters. i. As of the Initial Closing and immediately thereafter, the authorized capital stock of the Company will consist of (ia) 1,000 101,500,000 shares of Preferred Stock, of which 17,207,532 shares will be designated Series I Preferred Stock, 7,634,213 shares Second Amended and Restated Reclassification Agreement will be designated Series II Preferred Stock, 4,792,310 shares will be designated Series III Preferred Stock, 19,183,653 shares will be designated Series IV Preferred Stock, 21,000,000 shares will be designated Series V Preferred Stock, 4,600,000 shares will be designated Series V-1 Preferred Stock, of which 16,769,101 shares of Series A Convertible I Preferred Stock, $.01 par value (the "Series A Preferred"), 1,000 of which are Stock will be issued and outstanding, (ii) 1,000 438,392 shares of Series B Convertible I Preferred StockStock have been reserved for issuance under stock option agreements adopted by the Board of Directors, $.01 par value (the "7,634,207 shares of Series B Preferred"), 1,000 of which are II Preferred Stock will be issued and outstanding, (iii) 1,000 and 4,792,300 shares of the Series C Convertible III Preferred Stock, $.01 par value (the "Series C Preferred"), 1,000 of which are Stock will be issued and outstanding, (iv) 1,667 19,183,653 shares of the Series D Convertible IV Preferred Stock, $.0l par value (the "Series D Preferred"), 1,667 of which are Stock will be issued and outstanding, (v) 829,962 9,130,554 shares of Series E Preferred, 720,757 of which are V Preferred Stock will be issued and outstanding outstanding, 3,331,699 shares of Series V-1 Preferred Stock will be issued and outstanding, and (vib) 20,000,000 106,500,000 shares of Common Stock, of which 1,146,895 2,510,442 shares are will be issued and outstanding, 304,950 8,980,743 shares have been will be reserved for issuance under the Plan, the Stock Option Plans and any new stock option, stock purchase or similar equity incentive plan adopted by the Board of Directors, 17,207,532 shares will be reserved for issuance upon conversion of the Series A I Preferred and 399,400 Stock, 7,634,213 shares have been will be reserved for issuance upon conversion of the Series B II Preferred and 138,650 Stock, 19,183,653 shares have been will be reserved for issuance upon conversion of the Series C IV Preferred and 335,100 Stock, 21,000,000 shares have been will be reserved for issuance upon conversion of the Series D V Preferred and 720,757 Stock, 4,600,000 shares have been will be reserved for issuance upon conversion of the Series E V-1 Preferred Stock and 300,000 2,034,124 shares have been reserved for the issuance by all necessary corporate action upon exercise of the Warrant. The 300,000 shares of Common Stock will be reserved for issuance upon exercise of the Warrant will represent, as of the Closing, in excess of 7.19% of the Company's Common Stock and options on a Fully-Diluted Basis, as set forth in EXHIBIT F heretoExisting Warrants. As of the Closing, neither the Company nor any Subsidiary will not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stockstock or containing any profit participation features, except for the Series I Preferred Stock, the Series II Preferred Stock, Series IV Preferred Stock, Series V Preferred Stock, Series V-1 Preferred Stock and the Existing Warrants, nor will it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, except for as contemplated in this Agreement or pursuant to the Series A Preferred, the Series B Preferred, the Series C Preferred, the Series D Preferred, and the Series E Preferred and except for this Warrant and any options, rights or warrants to purchase shares, of capital stock of the Company issued to members of the board of directors, employees, consultants and advisors of the Company, and GE Capital Equity Investments, Inc. as more fully set forth on SCHEDULE 5.2 attached heretoStock Option Plans. As of the Closing, neither the Company nor any Subsidiary will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except pursuant to as contemplated in this Agreement, the Plan, the Stock Option Plans and the Initial Restated Certificate of Incorporation, the Bridge Notes and the Bridge Warrants. As of the Closing, all of the outstanding shares of the Company's ’s capital stock will be validly issued, fully paid and nonassessable.