Common use of Equity Capitalization Clause in Contracts

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 shares are issued and outstanding, 21,000,000 shares are reserved for issuance pursuant to the Company's stock option and purchase plans and 12,500,186 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 shares of preferred stock, par value $0.0001 per share, none of which are issued and outstanding as of the date hereof and (iii) there are 83,997,827 shares of Common Stock held by non-affiliates of the Company. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in (i) Schedule 3(q)(i), none of the Company's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's or any of its Subsidiary's' respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company's Articles of Incorporation, as amended and as in effect on the date hereof (the "Articles of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of of: (i) 200,000,000 100,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 shares hereof 37,748,977 are issued and outstandingoutstanding (none of which are treasury shares), 21,000,000 10,000,000 shares are reserved for issuance pursuant to the Company's ’s stock option incentive plan and purchase plans and 12,500,186 22,757,921 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes Preferred Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, ; and (ii) 50,000,000 5,000,000 shares of preferred stock, par (I) 100,000 shares of such preferred stock are designated as Preferred Stock Series A-1 with a stated value of $0.0001 100.00 per share, none of which are issued and outstanding as of the date hereof no shares are issued and outstanding, (II) 100,000 shares of such preferred stock are designated as Preferred Stock Series A-2 with a stated value of $100.00 per share, of which as of the date hereof no shares are issued and outstanding, (III) 600,000 shares of such preferred stock are designated as Preferred Stock Series B with no stated value, of which as of the date hereof no shares are issued and outstanding, (IV) 100,000 shares of such preferred stock are designated as Preferred Stock Series C with no stated value, of which as of the date hereof no shares are issued and outstanding, (V) 10,000 shares of such preferred stock are designated as Preferred Stock Series D with a stated value of $1,000.00 per share (the “Preferred Stock Series D”), of which as of the date hereof 4,175 shares are issued and outstanding; and (iiiVI) there are 83,997,827 10,000 shares of Common such preferred stock are designated as Series E Preferred Stock held by non-affiliates with a stated value of $1,000 per share, of which as of the Companydate hereof no shares are issued and outstanding (except such Preferred Shares that are to be issued at the Closing). All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in set forth on Schedule 3(q): (iA) Schedule 3(q)(i), none no shares of the Company's ’s capital stock is are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (iiB) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iiiC) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(r)) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (ivD) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesCompany; (vE) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except the Registration Rights Agreement); (viF) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (viiG) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution dilution, pre-emptive or similar provisions that will be triggered by the issuance of the Securities; (viiiH) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ixI) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents (as defined herein) but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's ’s or any of its Subsidiary's' Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or would could not reasonably be expected to have a Material Adverse Effect. The Company has furnished or made available to the Buyers Buyer true, correct and complete copies of the Company's Articles of Incorporation, as amended and as in effect on the date hereof (the "Articles of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), Bylaws and the terms of all securities convertible into, or exercisable or exchangeable for shares of for, Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of Immediately prior to the date hereofInitial Closing, the authorized capital stock of the Company consists of (ix) 200,000,000 1,500,000,000 shares of Common Stock, 104,354,190 shares of which which, as of the date hereof, 123,193,755 shares are issued and outstanding, 21,000,000 375,455,324 shares of which are reserved for issuance pursuant to the Company's stock option and purchase ’s employee incentive plans and 12,500,186 other options and warrants outstanding (which amount includes all shares issuable upon exercise of any options and/or warrants granted or issued by the Company on or prior to the date hereof), and approximately 82,053,189 shares of which are reserved for issuance pursuant to securities the Company’s outstanding convertible promissory notes (other than which amount includes all shares issuable upon exercise of any convertible promissory notes issued by the aforementioned options, Company on or prior to the Notes date hereof and the Warrantsmaximum number of performance shares potentially issuable to the holders of such promissory notes; provided, further, that such amount includes shares issuable upon conversion of interest on such convertible notes accrued through December 4, 2011), and (y) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 1,000,000 shares of preferred stock, par value $0.0001 .0001 per share, (1) 508,000 of which have been designated Series A Preferred Stock and 85,835 of which are issued and outstanding, (2) 20,000 of which have been designated Series B Preferred Stock and none of which are issued and outstanding as outstanding, (3) 6,000 of the date hereof which have been designated Series B-1 Preferred Stock and none of which are issued and outstanding, (4) 10,000 of which have been designated Series C Preferred Stock and all of which are issued and outstanding, (5) 14,500 of which have been designated Series D Preferred Stock and 11,150 of which are issued and outstanding, (6) 1,500 of which have been designated Series D-1 Preferred Stock and 1,250 of which are issued and outstanding, (7) 12,000 of which have been designated Series E Preferred Stock and none of which are issued and outstanding, (8) 1,400 of which have been designated Series E-1 Preferred Stock and none of which are issued and outstanding, and (iii9) there 20,000 of which have been designated Series E-2 Preferred Stock and none of which are 83,997,827 shares of Common Stock held by non-affiliates of the Companyissued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. The rights, privileges and preferences of each of the series of preferred stock are as set forth in the Company’s Certificate of Incorporation (including, with respect to the Series E Preferred Stock, Series E-1 Preferred Stock and Series E-2 Preferred Stock, the Certificate of Designation) and as provided by the Delaware General Corporation Law. Immediately prior to the Initial Closing or any Final Closing, as applicable, the outstanding shares of the Company’s capital stock are held of record and, to the knowledge of the Company, beneficially by the Persons and in the amounts set forth on Schedule 2(o); provided, that Schedule 2(o) does not identify all record or beneficial owners of less than 5% calculated on a fully diluted basis. Except as disclosed in set forth on Schedule 2(o): (i) Schedule 3(q)(i), none no shares of the Company's ’s capital stock is are subject to preemptive rights or any other similar rights or any liens or encumbrances Liens suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their its securities under the 1933 Act; (viv) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (viivi) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ixviii) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's or any of its Subsidiary's' respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers each Buyer true, correct and complete copies of the Company's Articles Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles of Incorporation"), Incorporation and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of Immediately prior to the date hereofInitial Closing, the authorized capital stock of the Company consists of (ix) 200,000,000 1,500,000,000 shares of Common Stock, 97,375,008 shares of which which, as of the date hereof, 123,193,755 shares are issued and outstanding, 21,000,000 743,049,694 shares of which are reserved for issuance pursuant to the Company's stock option and purchase ’s employee incentive plans and 12,500,186 other options and warrants outstanding (which amount includes all shares issuable upon exercise of any options and/or warrants granted or issued by the Company on or prior to the date hereof), and approximately 7,917,460 shares of which are reserved for issuance pursuant to securities the Company’s outstanding convertible promissory notes (other than which amount includes all shares issuable upon exercise of any convertible promissory notes issued by the aforementioned optionsCompany on or prior to the date hereof); provided, the Notes further, that such amount includes shares issuable upon conversion of interest on such convertible notes accrued through February 28, 2013), and the Warrants(y) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 1,000,000 shares of preferred stock, par value $0.0001 .0001 per share, none (1) 508,000 of which have been designated Series A Preferred Stock and 85,835 of which are issued and outstanding as outstanding, (2) 10,000 of the date hereof which have been designated Series C Preferred Stock and all of which are issued and outstanding, (3) 12,000 of which have been designated Series E Preferred Stock and 11,831 of which are issued and outstanding, (4) 1,400 of which have been designated Series E-1 Preferred Stock and 1,334 of which are issued and outstanding, and (iii5) there 20,000 of which have been designated Series E-2 Preferred Stock and 17,000 of which are 83,997,827 shares of Common Stock held by non-affiliates of the Companyissued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except The rights, privileges and preferences of each of the series of preferred stock are as disclosed set forth in (i) Schedule 3(q)(i)the Company’s Certificate of Incorporation and as provided by the Delaware General Corporation Law. Immediately prior to the Initial Closing, none the outstanding shares of the Company's ’s capital stock is subject are held of record and, to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course knowledge of the Company's or any of its Subsidiary's' respective businesses , beneficially by the Persons and which, individually or in the aggregateamounts set forth on Schedule 2(o); provided, do that Schedule 2(o) does not identify all record or would not have beneficial owners of less than 5% calculated on a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company's Articles of Incorporation, as amended and as in effect on the date hereof (the "Articles of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for shares of Common Stock and the material rights of the holders thereof in respect thereto.fully diluted

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 120,000,000 shares of Common Stock, of which which, as of the date hereof, 123,193,755 96,682,952 shares are issued and outstanding, 21,000,000 404,512 shares are reserved for issuance pursuant to the Company's stock option and purchase ’s employee equity incentive compensation plans and 12,500,186 16,980,361 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the WarrantsNotes) exercisable or exchangeable for, or convertible into, shares of Common Stock, and (ii) 50,000,000 5,000,000 shares of preferred stock, par value $0.0001 1.00 per share, none of which which, as of the date hereof, 4,345,514 shares are issued and outstanding and designated as of Class A Convertible Preferred Stock (the date hereof and (iii) there are 83,997,827 shares of Common Stock held by non-affiliates of the Company“Class A Preferred”). All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Upon approval of the matters being voted upon at the meeting of the Company’s stockholders scheduled to be held on February 17, 2010, the par value of the Common Stock shall be $0.01 per share, and, assuming all outstanding shares of Class A Preferred are converted into shares of Common Stock and no shares of Common Stock are issued pursuant to the exercise or vesting of outstanding equity awards and there are no forfeitures of outstanding equity awards after the date hereof, the authorized capital stock of the Company shall consist of (x) 2,000,000,000 shares of Common Stock, which, as of such date, no more than 1,053,912,776 shares shall be issued and outstanding, 404,512 shares shall be reserved for issuance pursuant to the Company’s employee equity incentive compensation plans and 16,980,361 shares shall be reserved for issuance pursuant to securities (other than the Notes) exercisable or exchangeable for, or convertible into, shares of Common Stock, and (y) 5,000,000 shares of preferred stock, par value $1.00 per share, which, as of such date, no shares of preferred stock shall be issued and outstanding. Except as disclosed or described in the Recent SEC Documents: (iA) Schedule 3(q)(i), none no shares of the Company's ’s capital stock is are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (iiB) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iiiC) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness in an amount in excess of $5,000,000 (excluding intercompany Indebtedness) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (ivD) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with naming the Company or any of its SubsidiariesSubsidiaries (other than liens permitted by the Financing Facilities); (vE) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActSecurities Act (except pursuant to the Registration Rights Agreement); (viF) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (viiG) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiH) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ixI) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed or described in the SEC Documents but not so disclosed or described in the SEC Documents, other than those incurred in the ordinary course of the Company's ’s or any of its Subsidiary's' ’s respective businesses and or which, individually or in the aggregate, do not or would not be reasonably likely to have a Material Adverse Effect. The Company confirms that it has furnished or made available to filed with the Buyers SEC true, correct and complete copies of the Company's Articles ’s Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles “Certificate of Incorporation"”), and the Company's ’s Bylaws, as amended and as in effect on the date hereof (the "“Bylaws"”), and the terms of all securities convertible into, or exercisable or exchangeable for for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 150,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 shares 22,564,487 are issued and outstanding, 21,000,000 11,000,000 shares are reserved for issuance pursuant to the Company's ’s stock option and purchase plans and 12,500,186 15,709,655 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, Stock and (ii) 50,000,000 10,000,000 shares of convertible preferred stock, par value $0.0001 0.001 per share, of which as of the date hereof, 1,150,000 are authorized and designated as Series B Convertible Preferred Stock, of which 473,901 shares are issued and outstanding; 100,000 are authorized and designated as Series C Convertible Preferred Stock, of which 100,000 shares are issued and outstanding; 250,000 are authorized and designated as Series D Convertible Preferred Stock, of which 250,000 shares are issued and outstanding; 296,667 are authorized and designated as Series E Convertible Preferred Stock, of which 296,667 shares are issued and outstanding; 114,286 are authorized and designated as Series F Convertible Preferred Stock, of which 114,286 shares are issued and outstanding; and 388,664 are authorized and designated as Series G Convertible Preferred Stock, none of which shares are issued and outstanding as of the date hereof and (iii) there are 83,997,827 shares of Common Stock held by non-affiliates of the Company. or outstanding.. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Section 3(r) to the disclosure Schedules: (i) Schedule 3(q)(i), none of the Company's ’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except the Registration Rights Agreement); (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's ’s or any of its Subsidiary's' Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers Buyer true, correct and complete copies of the Company's Articles ’s Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles “Certificate of Incorporation"”), and the Company's ’s Bylaws, as amended and as in effect on the date hereof (the "“Bylaws"”), and the terms of all securities convertible into, or exercisable or exchangeable for for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 40,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 shares 12,646,396 are issued and outstanding, 21,000,000 no shares are reserved for issuance pursuant to the Company's stock option and purchase plans and 12,500,186 10,092,130 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, Stock and (ii) 50,000,000 (w) 1,200,000 shares of 12.5% cumulative preferred stock, par value $0.0001 0.01 per share, none of which are issued and outstanding as of the date hereof hereof, none are issued and outstanding, (x) 1,000,000 shares of Series B-1 Preferred Stock, par value $0.01 per share, of which as of the date hereof, 255,094 are issued and outstanding, (y) 232,500 shares of Series B-3 Preferred Stock, par value $0.01 per share, of which as of the date hereof, 48,426 are issued and outstanding, and (iiiz) there are 83,997,827 100,000 shares of Common Stock held by non-affiliates Series B-4 Preferred Stock, par value $0.01 per share, of which as of the Companydate hereof, 95,500 are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(r): (i) Schedule 3(q)(i), none of the Company's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except the Registration Rights Agreement); (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's or any of its Subsidiary'sSubsidiaries' respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers Buyer true, correct and complete copies of the Company's Articles Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles Certificate of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 99,500,000 shares of Common Stock, of which as of the date hereof, 123,193,755 shares 12,533,326 are issued and outstanding, 21,000,000 shares are reserved for issuance pursuant to the Company's stock option outstanding and purchase plans and 12,500,186 500,000 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes Preferred Stock and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, Stock and (ii) 50,000,000 (w) 329,000 shares of authorized and undesignated preferred stock, (x) 100,000 shares of Preferred Stock Series 2002, $25 par value per share (the “2002 Preferred Stock”), 48,847 of which, as of the date hereof, are issued and outstanding, (y) 10,000 shares of Preferred Stock Series 2002A, $0.0001 25 par value per shareshare (the “2002A Preferred Stock”), none 820 of which which, as of the date hereof, are issued and outstanding and (z) 40,000 shares of Preferred Stock Series 2002B, $32 par value per share (the “2002B Preferred Stock”, together with the 2002 Preferred Stock and 2002A Preferred Stock, the “Existing Preferred Stock”, and the certificates of designations with respect to such Existing Preferred Stock, the “Existing Certificates of Designations”), 24,332 of which, as of the date hereof hereof, are issued and (iii) there are 83,997,827 shares of Common Stock held by non-affiliates of the Companyoutstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(r): (i) Schedule 3(q)(i), none of the Company's ’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(s)) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's ’s or any of its Subsidiary's' Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company's Articles ’s Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles “Certificate of Incorporation"”), and the Company's ’s Bylaws, as amended and as in effect on the date hereof (the "“Bylaws"”), and the terms of all securities convertible into, or exercisable or exchangeable for for, shares of Common Stock and the material rights of the holders thereof in respect thereto. Schedule 3(r) sets forth the shares of Common Stock owned beneficially or of record and Common Stock Equivalents (as defined below) held by each director and executive officer.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 250,000,000 shares of Common Stock, of which as of the date hereofMay 21, 123,193,755 2012, 147,141,341 shares are issued and outstanding, 21,000,000 16,797,866 shares are reserved for issuance pursuant to the Company's ’s stock option and purchase plans and 12,500,186 36,458,324 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, Stock and (ii) 50,000,000 5,000,000 shares of preferred stock, par value $0.0001 per share0.001, of which as of May 21, 2012, none of which such shares of preferred stock are issued and outstanding as of the date hereof and (iii) there are 83,997,827 shares of Common Stock held by non-affiliates of the Companyor outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. As of May 21, 2012, the number of shares of Common Stock held by non-affiliates of the Company is 124,083,626. Except as disclosed in Schedule 3(r), the 2011 10-K or the Disclosure Documents: (i) Schedule 3(q)(i), none of the Company's ’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's ’s or any of its Subsidiary's' ’s’ respective businesses and which, individually or in the aggregate, do not not, or would not reasonably be expected to, have a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company's Articles ’s Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles “Certificate of Incorporation"”), and the Company's ’s Bylaws, as amended and as in effect on the date hereof (the "“Bylaws"”), and the terms of all securities convertible into, or exercisable or exchangeable for for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereofExecution Date, after giving effect to the Acquisitions, as defined below, and the exchange of the Company’s outstanding Series A, Series A-1, Series C, Series C-1 Convertible Preferred Stock, certain warrants and certain convertible notes for shares of Series D Preferred Stock, the authorized capital stock of the Company consists of (i) 200,000,000 250,000,000 shares of Common Stock, of which as of the date hereofExecution Date, 123,193,755 shares 139,830,306 are issued and outstanding, 21,000,000 shares 3,705,000 are reserved for issuance pursuant to the Company's ’s stock option and purchase plans and 12,500,186 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stockplans, (ii) 50,000,000 4,270,939 shares of Preferred Stock including Series A, Series A-1, Series B, Series C, Series C-1, Series E, and Series F Convertible Preferred Stock, $0.0001 par value per share; of which as of the Execution Date 1,363,445 shares are issued and outstanding, (iii) 500,000 Shares of Series D Convertible Preferred Stock, of which a total of 45,000 shares are to be issued to the Buyers pursuant to Section 1(a)(i), and (iv) 5,229,061 shares of undesignated preferred stock, $0.0001 par value $0.0001 per share, none of which as of the Execution Date, no shares are issued and outstanding as of the date hereof and (iii) there are 83,997,827 shares of Common Stock held by non-affiliates outstanding. All of the Company. All of such ’s outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. The capitalization of the Company immediately prior to the Closing Date is set forth on Schedule 3(r)(A) attached hereto and the capitalization of the Company immediately following the Closing Date is set forth on Schedule 3(r)(B) attached hereto. Except as disclosed in the 10-K or in Schedule 3(r)(C): (i) Schedule 3(q)(i), none of the Company's ’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does has not have issued any stock appreciation rights or "“phantom stock" plans or agreements ” or any similar plan or agreementrights; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents Financial Statements in accordance with GAAP but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's or any of its Subsidiary's' respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse EffectFinancial Statements. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company's Articles ’s certificate of Incorporationincorporation, as amended and as in effect on the date hereof (the "Articles “Certificate of Incorporation"”), and the Company's ’s Bylaws, as amended and as in effect on the date hereof (the "“Bylaws"”), and the terms of all securities convertible into, or exercisable or exchangeable for for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 50,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 shares 16,241,259 are issued and outstanding, 21,000,000 662,902 shares are reserved for issuance pursuant to the Company's ’s stock option and purchase plans and 12,500,186 11,443,073 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes options and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, ; and (ii) 50,000,000 1,000,000 shares of preferred stock, par value $0.0001 0.001 per share, of which 264,000 shares are designated as Series A convertible preferred stock, of which 262,310 are currently issued and outstanding, 5,000 shares are designated as Series B convertible preferred stock, none which are currently issued and outstanding, and 11,000 shares are designated as Series C convertible preferred stock, none of which are currently issued and outstanding as of the date hereof and (iii) there are 83,997,827 shares of outstanding. No Common Stock are held by non-affiliates of the Companyin treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 1,059,173 shares of the Company’s issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the 1000 Xxx) of the Company or any of its Subsidiaries. (i) Except as disclosed in (i) Schedule 3(q)(i), hereto, none of the Company's ’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the CompanyCompany or any Subsidiary; (ii) except as disclosed in Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) except as disclosed in Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, amounts filed in connection with the Company or any of its Subsidiaries; (v) ), except as disclosed in Schedule 3(q)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) except as disclosed in Schedule 3(q)(vii)) , there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule 3(q)(viii), neither the Company does not have nor any Subsidiary has any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), neither the Company and nor any of its Subsidiaries have no any liabilities or obligations required to be disclosed in the SEC Documents but which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's ’s or any of its Subsidiary's' Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or would could not have a Material Adverse Effect. The Company has furnished or made available to the Buyers trueTrue, correct and complete copies of the Company's Articles ’s certificate of Incorporationincorporation, as amended and as in effect on the date hereof (the "Articles “Certificate of Incorporation"”), and the Company's Bylaws’s bylaws, as amended and as in effect on the date hereof (the "“Bylaws"”), and the terms of all securities convertible into, or exercisable or exchangeable for shares of for, Common Stock and the material rights of the holders thereof in respect theretothereto have heretofore been filed as part of the SEC Documents.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 400,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 191,852,906 shares are issued and outstanding, 21,000,000 34,271,581 shares are reserved for issuance pursuant to the Company's stock option and purchase plans and 12,500,186 44,779,557 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 10,000,000 shares of preferred stockthe Company's Series A Preferred Stock, par value $0.0001 0.001 per share, none share (1,875,000 of which are issued designated as Series A-1 Preferred Stock and outstanding 3,281,253 of which are designated as Series A-2 Preferred Stock), of which as of the date hereof hereof, 506,936 shares of Series A Preferred Stock are issued or outstanding, consisting of 105,234 shares of Series A-1 Preferred Stock and 401,705 shares of Series A-2 Preferred Stock and (iii) there are 83,997,827 134,926,803 shares of Common Stock held by non-affiliates of the Company. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(r): (i) Schedule 3(q)(i), none of the Company's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's or any of its Subsidiary's' respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company's Articles Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles Certificate of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 50,000,000 shares of Class A Common Stock, of which as of the date hereof, 123,193,755 hereof 13,399,059 shares are issued and outstanding, 21,000,000 no shares are held in treasury, 2,443,922 shares are reserved for issuance pursuant to the Company's stock option and purchase plans and 12,500,186 no shares are issuable and reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Class A Common Stock, (ii) 50,000,000 4,420,113 shares of Class B Common Stock, of which as of the date hereof 31,691 shares are issued and outstanding, no shares are held in treasury, no shares are reserved for issuance pursuant to the Company's stock option and purchase plans and no shares are issuable and reserved for issuance pursuant to securities (other than the Notes and Warrants) exercisable or exchangeable for, or convertible into, shares of Class B Common Stock and (iii) 10,000,000 shares of preferred stock, of which 780,000 shares have been designated Class A Redeemable Convertible Preferred Stock with a par value of $0.0001 .001 per share, none of which as of the date hereof, 40,000 are issued and outstanding as of the date hereof and (iii) there are 83,997,827 shares of Common Stock or held by non-affiliates of the Companyin treasury. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(r): (i) Schedule 3(q)(i), none of the Company's share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of share capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of share capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesCompany; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except the Registration Rights Agreement); (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's or any of its Subsidiary'sSubsidiaries' respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers Buyer true, correct and complete copies of the Company's Articles Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles Certificate of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 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, of which as of the date hereof, 123,193,755 25,983,224 shares are issued and outstanding, 21,000,000 4,356,697 shares are reserved for issuance pursuant to the Company's ’s stock option and purchase plans and 12,500,186 8,433,636 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the WarrantsNotes) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 shares of preferred stock, par value $0.0001 per share, none of which none are issued and outstanding as of the date hereof and (iii) there are 83,997,827 22,664,141 shares of Common Stock held by non-affiliates of the CompanyCompany (total shares issued and outstanding without officers and directors). All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in the SEC Documents, (i) Schedule 3(q)(i), none of the Company's ’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no 175,000 outstanding optionsoptions of which 16,667 are subject to future vesting, 16,428,421 warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), neither the Company does not have nor any Subsidiary has any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's ’s or any of its Subsidiary's' ’s’ respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company's Articles ’s Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles “Certificate of Incorporation"”), and the Company's ’s Bylaws, as amended and as in effect on the date hereof (the "“Bylaws"”), and the terms of all securities convertible into, or exercisable or exchangeable for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 750,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 50,117,978 shares are issued and outstanding, 21,000,000 150,000 shares are reserved for issuance pursuant to the Company's stock option and purchase plans and 12,500,186 1,163,548 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 15,000,000 shares of preferred stock, par value $0.0001 0.001 per share, none of which (w) 92,230 shares are designated as Series C preferred stock, 92,230 of which are issued and outstanding, (x) 25,000 shares are designated as Series H preferred stock, 0 of which are issued and outstanding, (y) 1,666,667 shares are designated as Series I preferred stock, 0 of which are issued and outstanding and (z) (w) 2,000,000 shares are designated as Series J preferred stock, 1,163,548 of the date hereof which are issued and outstanding and (iii) there are 83,997,827 23,956,712 shares of Common Stock held by non-affiliates of the Company. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in (i) Schedule 3(q)(i3(r)(i), none of the Company's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii3(r)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii3(r)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv3(r)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v)3(r)(v) or pursuant to the Registration Rights Agreement, there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) Schedule 3(q)(vi3(r)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii3(r)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii3(r)(viii), neither the Company does not have nor any Subsidiary has any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix3(r)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's or any of its Subsidiary's' respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers SEC Documents contain true, correct and complete copies of the Company's Articles Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles Certificate of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (ix) 200,000,000 100,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 shares 34,846,367 are issued and outstandingoutstanding (none of which are treasury shares), 21,000,000 10,000,000 shares are reserved for issuance pursuant to the Company's ’s stock option and purchase plans and 12,500,186 19,903,979 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes Preferred Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, and (iiy) 50,000,000 5,000,000 shares of preferred stock, par (1) 100,000 shares of such preferred are designated as Preferred Stock Series A-1 with a stated value of $0.0001 100.00 per share, none of which are issued and outstanding as of the date hereof no shares are issued and outstanding, (2) 100,000 shares of such preferred are designated as Preferred Stock Series A-2 with a stated value of $100.00 per share, of which as of the date hereof no shares are issued and outstanding, (3) 600,000 shares of such preferred are designated as Preferred Stock Series B with no stated value, of which as of the date hereof no shares are issued and outstanding, (4) 100,000 shares of such preferred are designated as Preferred Stock Series C with no stated value, of which as of the date hereof no shares are issued and outstanding, and (iii5) there are 83,997,827 10,000 shares of Common such preferred are designated as Preferred Stock held by non-affiliates Series D with a stated value of $1,000.00 per share, of which as of the Companydate hereof no shares are issued and outstanding (except such shares that are to be issued at the Closing). All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in set forth on Schedule 3(q): (i) Schedule 3(q)(i), none no shares of the Company's ’s capital stock is are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(r)) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its SubsidiariesCompany; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except the Registration Rights Agreement); (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution dilution, pre-emptive or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents (as defined herein) but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's ’s or any of its Subsidiary's' Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or would could not reasonably be expected to have a Material Adverse Effect. The Company has furnished or made available to the Buyers Buyer true, correct and complete copies of the Company's ’s Articles of Incorporation, as amended and as in effect on the date hereof (together with any certificate of designation of rights and preferences of any outstanding series of preferred stock of the "Company, the “Articles of Incorporation"”), and the Company's ’s Bylaws, as amended and as in effect on the date hereof (the "“Bylaws"”), and the terms of all securities convertible into, or exercisable or exchangeable for shares of for, Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (ix) 200,000,000 150,000,000 shares of Common Stock, 74,727,257 shares of which which, as of the date hereof, 123,193,755 shares are issued and outstanding, 21,000,000 outstanding and 67,050,513 shares of which are reserved for issuance pursuant to the Company's stock option ’s employee incentive plan and purchase plans other options and 12,500,186 warrants outstanding (which amount does not consider warrants for 60,634,295 shares of Common Stock which are reserved for issuance pursuant to securities restricted until the Charter Amendment (other than the aforementioned options, the Notes defined below) has been filed) and the Warrants(y) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 1,000,000 shares of preferred stock, par value $0.0001 .0001 per share, 200,000 of which have been designed Series A Preferred Stock and none of which are issued and outstanding as of the date hereof and (iii) there are 83,997,827 shares of Common Stock held by non-affiliates of the Companyoutstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. The rights, privileges and preferences of the Series A Preferred Stock are as stated in the Certificate of Designation and as provided by the Delaware General Corporation Law. Except as disclosed in set forth on Schedule 2(o): (i) Schedule 3(q)(i), none no shares of the Company's ’s capital stock is are subject to preemptive rights or any other similar rights or any liens or encumbrances Liens suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their its securities under the 1933 Act; (viv) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (viivi) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ixviii) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's or any of its Subsidiary's' respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers Buyer upon the Buyer’s request, true, correct and complete copies of the Company's Articles Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles of Incorporation"), Incorporation and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 236,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 16,265,663 shares are issued and outstanding, 21,000,000 1,810,000 shares are reserved for issuance pursuant to the Company's stock option and purchase plans and 12,500,186 4,902,000 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes Preferred Shares and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 20,000,000 shares of preferred stock, par value $0.0001 0.001 per share, none of which as of the date hereof, of which 1,000,000 are designated as Series A Preferred Stock, of which 580,000 are issued and outstanding as of the date hereof and (iii) there are 83,997,827 7,109,063 shares of Common Stock held by non-affiliates of the Company. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in in: (i) Schedule 3(q)(i3(r)(i), none of the Company's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii3(r)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii3(r)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv3(r)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v3(r)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) Schedule 3(q)(vi3(r)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii3(r)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii3(r)(viii), neither the Company does not have nor any Subsidiary has any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix3(r)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's or any of its Subsidiary's' respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company's Articles of Incorporation, as amended and as in effect on the date hereof (the "Articles of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists consists, respectively, of (i) 200,000,000 50,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 shares 16,711,562 are issued and outstanding, 21,000,000 outstanding and 8,684,125 shares are reserved for issuance pursuant to the Company's stock option outstanding options and purchase plans and 12,500,186 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stockwarrants, (ii) 50,000,000 1,797,500 shares of non-voting preferred stock, no par value $0.0001 per share, none of which are issued and outstanding as of the date hereof none is issued and outstanding or reserved for issuance, (iii) there are 83,997,827 2,000 shares of Common Stock held by non-affiliates voting Series A preferred, no par value per share, of which as of the Companydate hereof none is issued and outstanding or reserved for issuance, (iv) 200,000 shares of non-voting series B preferred stock, no par value per share, of which as of the date hereof none is issued and outstanding or reserved for issuance, and (v) 500 shares of series C preferred stock, no par value per share, of which as of the date hereof none is issued and outstanding or reserved for issuance. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(r): (i) Schedule 3(q)(i), none of the Company's ’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of share capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of share capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except the Investor Rights Agreement); (viiv) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (viiv) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivi) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ixvii) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's ’s or any of its Subsidiary's' Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers each Buyer true, correct and complete copies of the Company's Articles ’s Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles “Certificate of Incorporation"”), and the Company's Bylaws’s By-laws, as amended and as in effect on the date hereof (the "“Bylaws"”), and the terms of all securities convertible into, or exercisable or exchangeable for for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 250,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 shares 75,147,388 are issued and outstanding, 21,000,000 2,579,746 shares are reserved for issuance pursuant to the Company's Company stock option and purchase plans and 12,500,186 205,097,771 shares are reserved for issuance pursuant to securities (other than the aforementioned options, options and the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 0 shares of preferred stock, $0.001 par value $0.0001 per sharevalue, none of which are issued and outstanding as of the date hereof hereof, 0 are issued and outstanding, and (iii) there are 83,997,827 0 shares of Common Stock are held in treasury or owned by non-affiliates of the Company’s Subsidiaries. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 1,135,250 shares of the Company’s issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the Securities Act) of the Company or any of its Subsidiaries. (i) Except as disclosed in (i) Schedule 3(q)(i3(p)(i), hereto, none of the Company's ’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the CompanyCompany or any Subsidiary; (ii) except as disclosed in Schedule 3(q)(ii3(p)(ii), there are no outstanding options, warrants, scripscrips, rights or obligations to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) except as disclosed in Schedule 3(q)(iii3(p)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule 3(q)(iv3(p)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, amounts filed in connection with the Company or any of its Subsidiaries; (v) ), except as disclosed in Schedule 3(q)(v3(p)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act; (vi) except as disclosed in Schedule 3(q)(vi3(p)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) as of the Closing, there are no outstanding securities or instruments of the Company or any of its Subsidiaries, including without limitation, pursuant to the F8 Documents (as defined in the Subordination Agreement (as defined below)) which contain any redemption or similar provisions which may be triggered prior to such date that is 91 days after the Maturity Date (as defined in the Notes) of the Notes, and there are no contracts, commitments, understandings or arrangements, including, without limitation, pursuant to the F8 Documents, by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries prior to such date that is 91 days after the Maturity Date of the Notes, (viii) except as disclosed in Schedule 3(q)(vii3(p)(viii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiix) except as disclosed in Schedule 3(q)(viii3(p)(ix), neither the Company does not have nor any Subsidiary has any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ixx) Schedule 3(q)(ix), neither the Company and nor any of its Subsidiaries have no any liabilities or obligations required to be disclosed in the SEC Documents but which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's ’s or any of its Subsidiary's' Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or would not reasonably expected to have a Material Adverse Effect. The Company has furnished or made available to the Buyers trueTrue, correct and complete copies of the Company's Articles ’s certificate of incorporation, as amended or restated and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s by-laws, as amended and as in effect on the date hereof (the "Articles of Incorporation"), and the Company's “Bylaws, as amended and as in effect on the date hereof (the "Bylaws"”), and the terms of all securities convertible into, or exercisable or exchangeable for shares of for, Common Stock and the material rights of the holders thereof in respect theretothereto have heretofore been filed as part of the SEC Documents.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 70,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 shares 32,463,607 are issued and outstanding, 21,000,000 shares are reserved for issuance pursuant to the Company's stock option outstanding and purchase plans and 12,500,186 no shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes Preferred Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, although there are 12,756,870 options to purchase shares of Common Stock and (ii) 50,000,000 10,000,000 shares of preferred stock, par value $0.0001 0.01 per share, none 6,608,233 of which are issued and outstanding which, as of the date hereof hereof, are issued and (iii) there are 83,997,827 outstanding. The authorized shares of Common Stock held by non-affiliates preferred stock are classified as follows: 29,233 are designated as Series A Preferred Stock, 7,611 of which, as of the Companydate hereof, are issued and outstanding; 5,000,000 shares are designated as Series A-1 Preferred Stock, 4,855,389 of which, as of the date hereof, are issued and outstanding; 12,704 are designated as Series B Preferred Stock, 1,458 of which, as of the date hereof, are issued and outstanding; 350,000 are designated as Series C Preferred Stock, 279,208 of which, as of the date hereof, are issued and outstanding; 105,000 are designated as Series J Preferred Stock, none of which, as of the date hereof, are issued and outstanding; and 3,000,000 shares are designated as Series K Preferred Stock, 1,464,567 of which, as of the date hereof, are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule 3(r): (i) Schedule 3(q)(i), none of the Company's share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of share capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of share capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of share capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(s)) of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's or any of its Subsidiary'sSubsidiaries' respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers Buyer true, correct and complete copies of the Company's Articles Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles Certificate of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 72,554,000 shares are issued and outstanding, 21,000,000 14,000,000 shares are reserved for issuance pursuant to the Company's stock option and purchase plans and 12,500,186 611,000 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 shares of preferred stock, par value $0.0001 per share, none of which are issued and outstanding as of the date hereof and (iii) there are 83,997,827 39,469,228 shares of Common Stock held by non-affiliates of the Company. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in (i) Schedule 3(q)(i3(r)(i), none of the Company's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii3(r)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii3(r)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv3(r)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v3(r)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) Schedule 3(q)(vi3(r)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii3(r)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii3(r)(viii), the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix3(r)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's or any of its Subsidiary's' respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company's Articles of Incorporation, as amended and as in effect on the date hereof (the "Articles of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 117,793,755 shares are issued and outstanding, 21,000,000 shares are reserved for issuance pursuant to the Company's stock option and purchase plans and 12,500,186 5,687,000 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 shares of preferred stock, par value $0.0001 per share, none of which are issued and outstanding as of the date hereof and (iii) there are 83,997,827 78,597,827 shares of Common Stock held by non-affiliates of the Company. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in (i) Schedule 3(q)(i), none of the Company's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's or any of its Subsidiary's' respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company's Articles of Incorporation, as amended and as in effect on the date hereof (the "Articles of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereofMarch 13, 2009, the authorized capital stock of the Company consists of (ia) 200,000,000 300,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 shares 193,753,343 are issued and outstanding, 21,000,000 14,100,000 shares are reserved for issuance pursuant to the Company's ’s stock option and purchase plans and 12,500,186 12,373,598 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, (iib) 50,000,000 5,850,000 shares of undesignated preferred stock, of which as of the date hereof, none are issued and outstanding, (c) 150,000 shares of Series A Junior Participating Preferred Stock, par value $0.0001 0.001 per share, none of which are issued and outstanding as of the date hereof hereof, none are issued and outstanding, and (iiid) there are 83,997,827 4,000,000 shares of Common Stock held by non-affiliates Series B Preferred Stock, par value $0.001 per share, of which as of the Companydate hereof, 2,147,952 shares are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessablenonassessable and were not issued in violation of any preemptive rights. Except as disclosed in Schedule 3.16 or pursuant to this Agreement: (i) Schedule 3(q)(i), none of the Company's ’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act; (vi) Schedule 3(q)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii), the Company does not have any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than than, with respect to this clause (ix), those incurred in the ordinary course of the Company's ’s or any of its Subsidiary's' Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers Investor true, correct and complete copies of the Company's Articles Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles of Incorporation"), Incorporation and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

Equity Capitalization. 1 As of the date hereof, the authorized capital stock of the Company consists of (i) 200,000,000 100,000,000 shares of Common Stock, of which as of the date hereof, 123,193,755 3,399,872 shares are issued and outstanding, 21,000,000 86,857 shares are reserved for issuance pursuant to the Company's ’s stock option and purchase plans and 12,500,186 627,955 shares are reserved for issuance pursuant to securities (other than the aforementioned options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 50,000,000 12,500,000 shares of preferred stock, par value $0.0001 $ 0 per share, none of which (w) 61,607 shares are designated as Series A preferred stock, [all] of which are issued and outstanding as of the date hereof and (iii) there are 83,997,827 3,386,762 shares of Common Stock held by non-affiliates of the CompanyCompany (total shares issued and outstanding without officers and directors). All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in (i) Schedule 3(q)(i3(r)(i), none of the Company's ’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; (ii) Schedule 3(q)(ii3(r)(ii), there are no 15,336 outstanding optionsoptions of which 5,314 are subject to future vesting, 689,562 warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of the Company or any of its Subsidiaries; (iii) Schedule 3(q)(iii3(r)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) Schedule 3(q)(iv3(r)(iv), there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company or any of its Subsidiaries; (v) Schedule 3(q)(v3(r)(v), there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) Schedule 3(q)(vi3(r)(vi), there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) Schedule 3(q)(vii3(r)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) Schedule 3(q)(viii3(r)(viii), neither the Company does not have nor any Subsidiary has any stock appreciation rights or "“phantom stock" ” plans or agreements or any similar plan or agreement; and (ix) Schedule 3(q)(ix3(r)(ix), the Company and its Subsidiaries have no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company's ’s or any of its Subsidiary's' ’s’ respective businesses and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company's Articles ’s Certificate of Incorporation, as amended and as in effect on the date hereof (the "Articles “Certificate of Incorporation"”), and the Company's ’s Bylaws, as amended and as in effect on the date hereof (the "“Bylaws"”), and the terms of all securities convertible into, or exercisable or exchangeable for shares of Common Stock and the material rights of the holders thereof in respect thereto.