OF ISSUED COMMON STOCK
INCLUDES 139,645 SHARES OF COMMON STOCK HELD BY THE COMPANY IN ITS TREASURY
ACCOUNT AND 250,000 SHARES OF RESTRICTED COMMON STOCK HELD FOR THE BENEFIT OF
MR. WILLIAM M. LASKY.
AS OF THE COMMON STOCK CAPITALIZATION DATE, THERE WERE
OUTSTANDING (I) OPTIONS TO PURCHASE 549,525 SHARES OF COMMON STOCK, (II) STOCK
APPRECIATION RIGHTS TO ACQUIRE 809,051 SHARES OF COMMON STOCK, (III) DEFERRED
RIGHTS TO ACQUIRE 8,750 SHARES OF COMMON STOCK, (IV) RESTRICTED STOCK UNITS TO
ACQUIRE 217,883 SHARES OF COMMON STOCK AND (V) RESTRICTED STOCK AWARDS TO
ACQUIRE 250,000 SHARES OF COMMON STOCK (AS DESCRIBED IN THE PRECEDING SENTENCE).
THE OUTSTANDING SHARES OF COMMON STOCK HAVE BEEN DULY AUTHORIZED AND ARE VALIDLY
ISSUED AND OUTSTANDING, FULLY PAID AND NONASSESSABLE, AND SUBJECT TO NO
PREEMPTIVE RIGHTS (AND WERE NOT ISSUED IN VIOLATION OF ANY PREEMPTIVE RIGHTS).
EXCEPT AS SET FORTH ABOVE OR IN CONNECTION WITH THIS AGREEMENT, AS OF THE
CLOSING DATE, THERE ARE NO SHARES OF COMMON STOCK RESERVED FOR ISSUANCE, THE
COMPANY DOES NOT HAVE OUTSTANDING ANY SECURITIES PROVIDING THE HOLDER THE RIGHT
TO ACQUIRE COMMON STOCK AND THE COMPANY DOES NOT HAVE ANY COMMITMENT TO
AUTHORIZE, ISSUE OR SELL ANY COMMON STOCK.
SINCE THE COMMON STOCK
CAPITALIZATION DATE, THE COMPANY HAS NOT ISSUED ANY SHARES OF COMMON STOCK,
OTHER THAN UPON THE EXERCISE OF STOCK OPTIONS OR DELIVERED UNDER AWARDS GRANTED
UNDER THE COMPANY'S 2005 INCENTIVE AWARD PLAN, AS AMENDED AND RESTATED EFFECTIVE
SEPTEMBER 22, 2008.
AS OF THE CLOSING DATE, THE COMPANY IS NOT SUBJECT TO ANY
OBLIGATION (CONTINGENT OR OTHERWISE) TO
3
REPURCHASE OR OTHERWISE ACQUIRE OR RETIRE ANY SHARES OF ITS CAPITAL STOCK OR ANY
WARRANTS, OPTIONS OR OTHER RIGHTS TO ACQUIRE ITS CAPITAL STOCK.
(II)
THERE ARE NO STATUTORY OR CONTRACTUAL
STOCKHOLDER'S PREEMPTIVE RIGHTS OR RIGHTS OF REFUSAL WITH RESPECT TO THE
ISSUANCE OF THE WARRANT OR THE ISSUANCE OF COMMON STOCK UPON EXERCISE OF THE
WARRANT.
THE OFFER AND ISSUANCE OF THE WARRANT DOES NOT REQUIRE REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR APPLICABLE STATE SECURITIES LAWS.
TO THE BEST OF THE COMPANY'S
KNOWLEDGE, THERE ARE NO AGREEMENTS IN EFFECT BETWEEN THE COMPANY'S STOCKHOLDERS
WITH RESPECT TO THE VOTING OR TRANSFER OF THE COMPANY'S CAPITAL STOCK, EXCEPT
FOR THE AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, DATED JANUARY 31,
2005, BY AND AMONG THE COMPANY AND THE STOCKHOLDERS LISTED ON THE SIGNATURE
PAGES THERETO.
(C)
PREFERRED SHARE.
THE COMPANY HAS ADOPTED,
EXECUTED AND FILED THE CERTIFICATE OF DESIGNATION IN THE FORM ATTACHED HERETO AS
ANNEX A WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE, AND SUCH
CERTIFICATE OF DESIGNATION IS IN FULL FORCE AND EFFECT.
THE PREFERRED SHARE HAS
BEEN DULY AND VALIDLY AUTHORIZED, AND, WHEN ISSUED AND DELIVERED PURSUANT TO
THIS AGREEMENT, THE PREFERRED SHARE WILL BE DULY AND VALIDLY ISSUED, FULLY PAID
AND NON-ASSESSABLE, FREE FROM ALL TAXES, LIENS AND CHARGES AND WILL NOT BE
SUBJECT TO PREEMPTIVE RIGHTS OF ANY OTHER STOCKHOLDERS OF THE COMPANY.
THE