ASSET OF THE
COMPANY OR ANY OF ITS SUBSIDIARIES IS BOUND OR AFFECTED.
(2)
NEITHER THE COMPANY NOR ITS SUBSIDIARIES IS IN VIOLATION OF ANY
TERM OF ITS CERTIFICATE OF INCORPORATION OR BYLAWS OR, IN THE CASE OF
SUBSIDIARIES, THEIR ORGANIZATIONAL CHARTER OR BYLAWS, RESPECTIVELY.
(3)
THE BUSINESS OF THE COMPANY AND ITS SUBSIDIARIES IS NOT BEING
CONDUCTED IN VIOLATION OF ANY LAW, ORDINANCE OR REGULATION OF ANY FOREIGN,
FEDERAL, STATE OR LOCAL GOVERNMENT OR GOVERNMENTAL AGENCY, DEPARTMENT, OR BODY,
EXCEPT WHERE SUCH VIOLATIONS WOULD NOT RESULT, EITHER INDIVIDUALLY OR IN THE
AGGREGATE, IN A MATERIAL ADVERSE EFFECT ON THE BUSINESS OR OPERATIONS OF THE
COMPANY.
7
(4)
EXCEPT FOR (A) THE FILING WITH THE SEC AND THE DISSEMINATION TO
STOCKHOLDERS OF THE COMPANY'S INFORMATION STATEMENT AS REQUIRED UNDER THE
EXCHANGE ACT (AS DEFINED BELOW), (B) AS MAY BE REQUIRED BY ANY APPLICABLE STATE
SECURITIES LAWS, OR (C) THE FILING OF THE CHARTER AMENDMENT AND THE CERTIFICATES
OF DESIGNATION WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE, THE COMPANY
IS NOT REQUIRED TO OBTAIN ANY CONSENT, AUTHORIZATION OR ORDER OF, OR MAKE ANY
FILING OR REGISTRATION WITH, ANY FOREIGN, FEDERAL, STATE OR LOCAL GOVERNMENT OR
GOVERNMENTAL AGENCY, DEPARTMENT, OR BODY IN ORDER FOR IT TO EXECUTE, DELIVER OR
PERFORM ANY OF ITS OBLIGATIONS UNDER OR CONTEMPLATED BY THIS AGREEMENT AND THE
RELATED AGREEMENTS OR TO PERFORM ITS OBLIGATIONS UNDER THE CERTIFICATES OF
DESIGNATION, IN EACH CASE IN ACCORDANCE WITH THE TERMS HEREOF OR THEREOF.
ALL
CONSENTS, AUTHORIZATIONS, ORDERS, FILINGS AND REGISTRATIONS WHICH THE COMPANY IS
REQUIRED TO OBTAIN AS DESCRIBED IN THE PRECEDING SENTENCE SHALL HAVE BEEN
OBTAINED OR EFFECTED ON OR PRIOR TO THE CLOSING DATE AND SHALL NOT BE THE
SUBJECT OF ANY PENDING OR, TO THE KNOWLEDGE OF THE COMPANY, THREATENED ATTACK BY
APPEAL, DIRECT PROCEEDING OR OTHERWISE.
THE COMPANY IS NOT, AND AS OF THE
CLOSING DATE WILL NOT BE, IN VIOLATION OF THE LISTING REQUIREMENTS OF THE
AMERICAN STOCK EXCHANGE, AND THE CONVERSION SHARES SHALL BE AUTHORIZED FOR
LISTING THEREON.
D.
Capitalization; Status of Capital Stock.
(1)
IMMEDIATELY PRIOR TO THE CLOSING AND WITHOUT GIVING EFFECT TO THE
ISSUANCE OF THE COMPANY'S CAPITAL STOCK CONTEMPLATED BY THIS AGREEMENT, THE
EXCHANGE AGREEMENT OR THE COGENT EMPLOYEE STOCK PLAN, BUT GIVING EFFECT TO THE
CONVERSION OF THE COMPANY'S OUTSTANDING PREFERRED STOCK INTO COMMON STOCK, THE
COMPANY WILL HAVE A TOTAL AUTHORIZED CAPITALIZATION CONSISTING OF:
A.
395,000,000 SHARES OF COMMON STOCK, PAR VALUE $.001 (THE "COMMON
STOCK") OF WHICH (A) 14,228,077 SHARES ARE ISSUED AND OUTSTANDING, (B) 1,490,000
SHARES REMAIN RESERVED FOR ISSUANCE PURSUANT TO STOCK PURCHASE, STOCK GRANT OR
STOCK OPTION ARRANGEMENTS FOR EMPLOYEES, DIRECTORS OR CONSULTANTS OF THE
COMPANY, (C) 1,791,051 SHARES REMAIN RESERVED FOR ISSUANCE TO HOLDERS OF SHARES
OF THE COMMON STOCK OF ALLIED RISER, (D) 710,216 SHARES REMAIN RESERVED FOR
ISSUANCE PURSUANT TO WARRANTS GRANTED TO CISCO SYSTEMS CAPITAL CORPORATION IN
CONNECTION WITH THE CREDIT AGREEMENT BETWEEN THE COMPANY AND CISCO SYSTEMS
CAPITAL CORPORATION,
(E) 155,809 SHARES REMAIN RESERVED FOR