Common use of Capital Structure of the Company Clause in Contracts

Capital Structure of the Company. (a) The authorized capital stock of the Company consists solely of 60,000,000 shares of Company Common Stock and 5,000,000 shares of Company Preferred Stock. A total of 34,724,529 shares of Company Common Stock and no shares of Company Preferred Stock are issued and outstanding as of December 15, 2007. The Company has reserved an aggregate of 10,342,014 shares of Company Common Stock for issuance pursuant to the Company Option Plans (including shares subject to outstanding Company Options and outstanding Company Restricted Stock Units). As of December 15, 2007, (i) a total of 2,860,049 shares of Company Common Stock are subject to outstanding Company Options, (ii) a total of 898,000 shares of Company Common Stock are subject to outstanding Company Restricted Stock Units, and (iii) a total of 2,084,365 shares of Company Common Stock are reserved for future grant and issuance under the Company Option Plans (excluding shares subject to outstanding Company Options). Except for Company Options and Company Restricted Stock Units, there are no stock appreciation rights, options, warrants, calls, rights, commitments, conversion privileges or preemptive or other rights or Contracts outstanding to purchase or otherwise acquire any shares of Company Capital Stock or Company Voting Debt or any securities or debt convertible into or exchangeable for Company Capital Stock or Company Voting Debt or obligating the Company to grant, extend or enter into any such option, warrant, call, right, commitment, conversion privilege or preemptive or other right or Contract. (b) All issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, were not issued in violation of and are not subject to any right of rescission, right of first refusal or preemptive right, and have been offered, issued, sold and delivered by the Company in compliance in all material respects with all requirements of Applicable Law and all requirements set forth in applicable Contracts. There is no Liability for dividends accrued and unpaid by the Company. As of the Agreement Date, there are no shares of Company Common Stock held in treasury by the Company or any Company Subsidiaries. (c) Schedule 3.4(c)-1 of the Company Disclosure Letter sets forth as of the Agreement Date, for each Company Option, (i) the name of the holder of such Company Option, (ii) the exercise price per share of such Company Option, (iii) each holder of outstanding Company Options that is not an employee of the Company or any Subsidiary (including non-employee directors, former employees, consultants, advisory board members, vendors, service providers or other similar persons), and (iv) the number of shares covered by such Company Option. Schedule 3.4(c)-2 of the Company Disclosure Letter sets forth as of the Agreement Date, for each Company Restricted Stock Unit, (i) the name of the holder of such Company Restricted Stock Unit and (ii) the number of shares covered by such Company Restricted Stock Unit. All issued and outstanding Company Options and Company Restricted Stock Units were issued by the Company in compliance in all material respects with all requirements of Applicable Law and all requirements set forth in applicable Contracts and were not issued in violation of and are not subject to any right of rescission, right of first refusal or preemptive right. True and correct copies of the Company Option Plans, and the standard terms of option and restricted stock unit agreement under each Company Option Plan have been delivered by the Company to Acquiror’s legal counsel, and such plans and agreements have not been amended, modified or supplemented since being delivered, and there are no agreements, understandings or commitments to amend, modify or supplement such plans or agreements in any case from those delivered.

Capital Structure of the Company. (a) The authorized capital stock of the Company consists solely of 60,000,000 100,000,000 shares of Company Common Stock Stock, of which 2,000,000 shares are designated as Class B non-voting Common Stock, and 5,000,000 shares of Company Preferred Stock. A As of the close of business on January 24, 2007, a total of 34,724,529 29,386,546 shares of Company Common Stock, no shares of Class B non-voting Common Stock and no shares of Company Preferred Stock are issued and outstanding as of December 15, 2007outstanding. The Company has reserved (i) an aggregate of 10,342,014 5,798,098 shares of Company Common Stock for issuance pursuant to the Company Option Plans (including shares subject to outstanding Company Options Options) and outstanding (ii) an aggregate of 3,125,213 shares of Company Restricted Common Stock Units)for issuance pursuant to the Company ESPP. As of December 15the close of business on January 24, 2007, (i) a total of 2,860,049 2,300,853 shares of Company Common Stock are subject to outstanding Company Options, (ii) a total of 898,000 1,459,998 shares of Company Common Stock are subject to outstanding Company Restricted Stock UnitsWarrants, and (iii) a total of 2,084,365 1,490,289 shares of Company Common Stock are reserved for future grant and issuance under the Company Option Plans (excluding shares subject to outstanding Company Options), and (iv) a total of 2,454,329 shares of Company Common Stock are reserved for future grant and issuance under the Company ESPP. Except for Company Options and Company Restricted Stock UnitsWarrants, there are no stock appreciation rights, options, warrants, calls, rights, legally binding commitments, conversion privileges or preemptive or other rights or Contracts outstanding to purchase or otherwise acquire any shares of Company Capital Stock or Company Voting Debt or any securities or debt convertible into or exchangeable for Company Capital Stock or Company Voting Debt or obligating the Company to grant, extend or enter into any such option, warrant, call, right, legally binding commitment, conversion privilege or preemptive or other right or Contract. In the period from January 24, 2007 through the Agreement Date, (i) the Company has not issued shares of Company Capital Stock other than pursuant to the exercise of Company Options or Company Warrants that were issued and outstanding on January 24, 2007 and (ii) the Company has not issued any Company Options or Company Warrants. (b) Schedule 3.4(b) of the Company Disclosure Letter sets forth as of the close of business on January 24, 2007, all holders of Unvested Company Shares, and for each such Company Stockholder, (i) the number of Unvested Company Shares held, (ii) the material terms of the Company’s rights to repurchase such Unvested Company Shares, (iii) the schedule on which such rights lapse and (iv) whether such repurchase rights lapse in full or in part as a result of any of the transactions contemplated by this Agreement or upon any other event or condition. All issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, were not issued in violation of and are not subject to any right of rescission, right of first refusal or preemptive right, and have been offered, issued, sold and delivered by the Company in compliance in all material respects with all requirements of Applicable Law and all requirements set forth in applicable Contracts. There is no Liability for dividends accrued and unpaid by the Company. As of the Agreement Date, there are no shares of Company Common Stock held in treasury by the Company or any Company Subsidiaries. (c) Schedule 3.4(c)-1 of the Company Disclosure Letter sets forth as of the Agreement Dateclose of business on January 24, 2007, for each Company Option, (i) the name of the holder of such Company Option, (ii) the exercise price per share of such Company Option, (iii) each holder of outstanding Company Options that is not an employee of the Company or any Subsidiary (including non-employee directors, former employees, consultants, advisory board members, vendors, service providers or other similar persons), and (iv) the number of shares covered by such Company Option, (v) the term of such Company Option, (vi) the vesting schedule for such Company Option and the extent such Company Option is vested as of January 24, 2007, (vii) whether such Company Option is an incentive stock option under Section 422 of the Code, (viii) the terms of any accelerated vesting or exercisability of any Company Options, and (ix) which Company Option Plan (if any) such Company Option was granted under. The terms of the Company Option Plans permit the conversion of Company Options into cash as provided in this Agreement, without the consent or approval of the holders of such Company Options, the Company Stockholders or otherwise and except as set forth in Section 3.4(c) of the Company Disclosure Letter, without acceleration of the exercise schedule or vesting provisions in effect for such Company Options. Schedule 3.4(c)-2 of the Company Disclosure Letter sets forth as of the Agreement Dateclose of business on January 24, 2007, for each Company Restricted Stock UnitWarrant, (i) the name of the holder of such Company Restricted Stock Unit and Warrant, (ii) the exercise price per share of such Company Warrant, (iii) the number and kind of shares covered by such Company Restricted Stock UnitWarrant, (iv) the vesting schedule for such Company Warrant, (v) the extent such Company Warrant is vested as of January 24, 2007, (vi) whether such Company Warrant was issued in connection with the performance of services, and (vii) whether the exercisability of such Company Warrant shall be accelerated in any manner by any of the transactions contemplated by this Agreement or upon any other event or condition and the extent of acceleration, if any. All issued and outstanding Company Options and Company Restricted Stock Units Warrants were issued by the Company in material compliance in all material respects with all requirements of Applicable Law and all requirements set forth in applicable Contracts and were not issued in material violation of and are not subject to any right of rescission, right of first refusal or preemptive right. True and correct copies of the Company Option Plans, and the standard terms of option and restricted stock unit agreement under each Company Option Plan, each agreement for each Company Option that does not conform to the standard agreement under such Company Option Plan and each Company Warrant have been delivered made available by the Company to Acquiror’s legal counsel, and such plans and agreements have not been amended, modified or supplemented since being deliveredmade available, and there are no agreements, understandings or commitments to amend, modify or supplement such plans or agreements in any case from those deliveredmade available.

Capital Structure of the Company. (a) The authorized capital stock of the Company consists solely of 60,000,000 99,000,000 shares of Company Common Stock and 5,000,000 1,000,000 shares of Company Preferred Stock. A As of the close of business on July 23, 2009, a total of 34,724,529 28,863,750 shares of Company Common Stock are issued and outstanding and no shares of Company Preferred Stock are issued and outstanding as of December 15, 2007outstanding. The Company has reserved (i) an aggregate of 10,342,014 14,712,020 shares of Company Common Stock for issuance pursuant to the Company Option Plans Plan (including shares subject to outstanding Company Options Options, Company Director Stock Units and outstanding Company Restricted Stock-Based Awards) and (ii) an aggregate of 1,200,000 shares of Company Common Stock Units)for issuance pursuant to the Company ESPP. As of December 15the close of business on July 23, 20072009, (i) a total of 2,860,049 1,895,520 shares of Company Common Stock are subject to outstanding Company Options, (ii) a total of 898,000 18,306 shares of Company Common Stock are subject to outstanding Company Restricted Director Stock Units, and (iii) a total of 2,084,365 256,391 shares have been issued or are subject to issuance pursuant Company Stock-Based Awards that are issued and outstanding, and, between such date and the Agreement Date, the Company has not granted or issued, or committed to grant or issue, any Company Options, Company Director Stock Units, Company Stock-Based Awards or any other securities. As of the close of business on July 23, 2009, (A) a total of 3,717,861 shares of Company Common Stock are reserved for future grant and issuance under the Company Option Plans Plan (excluding shares subject to outstanding Company Options), and (B) a total of 45,947 shares of Company Common Stock are reserved for future grant and issuance under the Company ESPP. Except for the issued and outstanding Company Options Options, Company Director Stock Units and Company Restricted Stock UnitsStock-Based Awards described in the previous sentence, as of the Agreement Date, there are no stock appreciation rights, options, warrants, calls, rights, commitments, conversion privileges or preemptive or other rights or Contracts outstanding to purchase or otherwise acquire any shares of Company Capital Stock or Company Voting Debt or any securities or debt convertible into or exchangeable for Company Capital Stock or Company Voting Debt or obligating the Company to grant, extend or enter into any such option, warrant, call, right, commitment, conversion privilege or preemptive or other right or Contract. (b) , and between such date and the Agreement Date, the Company has not granted or issued any of the foregoing securities or rights. All issued and outstanding shares of Company Common Stock Stock, including all Company Stock-Based Awards, have been duly authorized and validly issued, are fully paid and nonassessable, were not issued in violation of and are not subject to any right of rescission, right of first refusal or preemptive right, and have been offered, issued, sold and delivered by the Company in compliance in all material respects with all requirements of Applicable Law and all requirements set forth in applicable Contracts. There is no Liability for dividends accrued and unpaid by the Company. As of the Agreement Date, there are no shares of Company Common Stock held in treasury by the Company or any Company Subsidiaries. (cb) Schedule 3.4(c)-1 3.4(b) of the Company Disclosure Letter sets forth as of the Agreement Date, for each date set forth therein the total number of vested Company Option, (i) Options and the name total number of the holder unvested Company Options and exercise price of such Company OptionOptions and, (ii) the exercise price per share of between such Company Option, (iii) each holder of outstanding Company Options that is not an employee of the Company or any Subsidiary (including non-employee directors, former employees, consultants, advisory board members, vendors, service providers or other similar persons), date and (iv) the number of shares covered by such Company Option. Schedule 3.4(c)-2 of the Company Disclosure Letter sets forth as of the Agreement Date, for each the Company Restricted Stock Unithas not granted or issued, (i) the name of the holder of such or committed to grant or issue, any Company Restricted Stock Unit and (ii) the number of shares covered by such Company Restricted Stock UnitOptions. All issued and outstanding Company Options Options, Company Stock-Based Awards and Company Restricted Director Stock Units were issued by the Company in compliance in all material respects with all requirements of Applicable Law except as would not have a Material Adverse Effect on the Company and all requirements set forth in applicable Contracts and were not issued in violation of and are not subject to any right of rescission, right of first refusal or preemptive right. True and correct copies of the Company Option Plans, Plan and the standard terms Contracts entered into thereunder in connection with the grant or issuance of option such Company Options, Company Stock-Based Awards and restricted stock unit agreement under each Company Director Stock Units. Neither the Company Option Plan have been delivered by Plan, nor the standard form agreements under the Company to Acquiror’s legal counselOption Plan, and such plans and agreements have not been amended, modified or supplemented since being deliveredthe most recent filing by the Company thereof with the SEC, and there are no agreements, understandings or commitments to amend, modify or supplement such plans or agreements in any case from those deliveredagreements.

Capital Structure of the Company. (a) The As of the Agreement Date, the authorized capital stock of the Company consists solely of 60,000,000 Fifty Million (50,000,000) shares of Company Common Stock Stock, and 5,000,000 Four Million (4,000,000) shares of Company Preferred Stock. A total of 34,724,529 22,471,395 shares of Company Common Stock and no shares of Company Preferred Stock are issued and outstanding as of December 15the Agreement Date. As of the Agreement Date, 2007. The the Company has reserved (i) an aggregate of 10,342,014 4,714,318 shares of Company Common Stock for issuance pursuant to the Company Option Plans (including shares subject to outstanding Company Options Options) and outstanding (ii) an aggregate of 1,000,000 shares of Company Restricted Common Stock Units)for issuance pursuant to the Company ESPP. As of December 15, 2007the Agreement Date, (i) a total of 2,860,049 2,623,671 shares of Company Common Stock are subject to outstanding Company Options, (ii) a total of 898,000 no shares of Company Common Capital Stock are subject to outstanding Company Restricted Stock Unitswarrants, and (iii) a total of 2,084,365 1,932,768 shares of Company Common Stock are reserved for future grant and issuance under the Company Option Plans (excluding shares subject to outstanding Company Options), and (iv) a total of 840,311 shares of Company Common Stock are reserved for future grant and issuance under the Company ESPP. Except for such Company Options as set forth above (and any Company Restricted Stock UnitsOptions granted under the Company ESPP after the Agreement Date), there are no stock appreciation rights, stock units, options, warrants, calls, rights, commitments, conversion privileges or preemptive or other rights or Contracts outstanding to purchase or otherwise acquire any shares of Company Capital Stock or Company Voting Debt or any securities or debt convertible into or exchangeable for Company Capital Stock or Company Voting Debt or obligating the Company to grant, extend or enter into any such option, warrant, call, right, commitment, conversion privilege or preemptive or other right or Contract. (b) All issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, were not issued in violation of and are not subject to any right of rescission, right of first refusal or refusal, preemptive right, right of repurchase or vesting condition and have been offered, issued, sold and delivered by the Company in material compliance in all material respects with all requirements of Applicable Law and all requirements set forth in applicable Contracts. There is no Liability for dividends accrued and unpaid by the Company. As of the Agreement Date, there are no shares of Company Common Stock held in treasury by the Company or any Company Subsidiaries. (c) Schedule 3.4(c)-1 3.4(c) of the Company Disclosure Letter sets forth as of the Agreement Date, for each Company Option, (i) the name of the holder of such Company Option, (ii) the exercise price per share of such Company Option, (iii) each holder of outstanding Company Options that is not an employee of the Company or any Subsidiary (including non-employee directors, former employees, consultants, advisory board members, vendors, service providers or other similar persons), and (iv) the number of shares covered by such Company Option, (v) the term of such Company Option, (vi) the vesting schedule for such Company Option, and (vii) the terms of any accelerated vesting or exercisability of any Company Options, or any change in the price, exercise period, or other modifications in the terms of any Company Option, either in connection with the Merger or any other transaction contemplated by this Agreement or upon termination of employment or service with the Company, the Surviving Corporation, Acquiror or any Subsidiary following the Merger or otherwise. Schedule 3.4(c)-2 The terms of the Company Disclosure Letter sets forth as Option Plans permit the conversion of the Agreement DateVested Company Options into cash as provided in Section 2.1(b)(ii) of this Agreement, for each Company Restricted Stock Unit, (i) without the name consent or approval of the holder holders of such Company Restricted Stock Unit Options, the Company Stockholders or otherwise. The terms of the Company Option Plans permit the cancellation of Company Options as provided in Section 2.1(b)(iii) and Section 2.1(b)(iv) of this Agreement, without (A) the consent or approval of the holders of such Company Options, the Company Stockholders or otherwise, (B) the payment of any consideration to the holders of such Company Options and (iiC) acceleration of the number of shares covered by exercise schedule or vesting provisions in effect for such Company Restricted Stock UnitOptions. All issued and outstanding Company Options and Company Restricted Stock Units were issued by the Company in material compliance in all material respects with all requirements of Applicable Law and all requirements set forth in applicable Contracts and were not issued in material violation of and are not subject to any right of rescission, right of first refusal or preemptive right. True and correct copies of the Company Option Plans, Plans and the standard terms of option and restricted stock unit each agreement under for each Company Option Plan have been delivered by the Company to Acquiror’s legal counsel, and such plans and agreements have not been amended, modified or supplemented since being delivered, and there are no agreements, understandings or commitments to grant additional Company Options or to amend, modify or supplement such plans or agreements in any case from those delivered.

Capital Structure of the Company. (a) The authorized capital stock of the Company consists solely of 60,000,000 100,000,000 shares of Company Common Stock Stock, of which 2,000,000 shares are designated as Class B non-voting Common Stock, and 5,000,000 shares of Company Preferred Stock. A As of the close of business on January 24, 2007, a total of 34,724,529 29,386,546 shares of Company Common Stock, no shares of Class B non-voting Common Stock and no shares of Company Preferred Stock are issued and outstanding as of December 15, 2007outstanding. The Company has reserved (i) an aggregate of 10,342,014 5,798,098 shares of Company Common Stock for issuance pursuant to the Company Option Plans (including shares subject to outstanding Company Options Options) and outstanding (ii) an aggregate of 3,125,213 shares of Company Restricted Common Stock Units)for issuance pursuant to the Company ESPP. As of December 15the close of business on January 24, 2007, (i) a total of 2,860,049 2,300,853 shares of Company Common Stock are subject to outstanding Company Options, (ii) a total of 898,000 1,459,998 shares of Company Common Stock are subject to outstanding Company Restricted Stock UnitsWarrants, and (iii) a total of 2,084,365 1,490,289 shares of Company Common Stock are reserved for future grant and issuance under the Company Option Plans (excluding shares subject to outstanding Company Options), and (iv) a total of 2,454,329 shares of Company Common Stock are reserved for future grant and issuance under the Company ESPP. Except for Company Options and Company Restricted Stock UnitsWarrants, there are no stock appreciation rights, options, warrants, calls, rights, legally binding commitments, conversion privileges or preemptive or other rights or Contracts outstanding to purchase or otherwise acquire any shares of Company Capital Stock or Company Voting Debt or any securities or debt convertible into or exchangeable for Company Capital Stock or Company Voting Debt or obligating the Company to grant, extend or enter into any such option, warrant, call, right, legally binding commitment, conversion privilege or preemptive or other right or Contract. . In the period from January 24, 2007 through the Agreement Date, (i) the Company has not issued shares of Company Capital Stock other than pursuant to the exercise of Company Options or Company Warrants that were issued and outstanding on January 24, 2007 and (ii) the Company has not issued any Company Options or Company Warrants. Table of Contents (b) Schedule 3.4(b) of the Company Disclosure Letter sets forth as of the close of business on January 24, 2007, all holders of Unvested Company Shares, and for each such Company Stockholder, (i) the number of Unvested Company Shares held, (ii) the material terms of the Company’s rights to repurchase such Unvested Company Shares, (iii) the schedule on which such rights lapse and (iv) whether such repurchase rights lapse in full or in part as a result of any of the transactions contemplated by this Agreement or upon any other event or condition. All issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, were not issued in violation of and are not subject to any right of rescission, right of first refusal or preemptive right, and have been offered, issued, sold and delivered by the Company in compliance in all material respects with all requirements of Applicable Law and all requirements set forth in applicable Contracts. There is no Liability for dividends accrued and unpaid by the Company. As of the Agreement Date, there are no shares of Company Common Stock held in treasury by the Company or any Company Subsidiaries. (c) Schedule 3.4(c)-1 of the Company Disclosure Letter sets forth as of the Agreement Dateclose of business on January 24, 2007, for each Company Option, (i) the name of the holder of such Company Option, (ii) the exercise price per share of such Company Option, (iii) each holder of outstanding Company Options that is not an employee of the Company or any Subsidiary (including non-employee directors, former employees, consultants, advisory board members, vendors, service providers or other similar persons), and (iv) the number of shares covered by such Company Option, (v) the term of such Company Option, (vi) the vesting schedule for such Company Option and the extent such Company Option is vested as of January 24, 2007, (vii) whether such Company Option is an incentive stock option under Section 422 of the Code, (viii) the terms of any accelerated vesting or exercisability of any Company Options, and (ix) which Company Option Plan (if any) such Company Option was granted under. The terms of the Company Option Plans permit the conversion of Company Options into cash as provided in this Agreement, without the consent or approval of the holders of such Company Options, the Company Stockholders or otherwise and except as set forth in Section 3.4(c) of the Company Disclosure Letter, without acceleration of the exercise schedule or vesting provisions in effect for such Company Options. Schedule 3.4(c)-2 of the Company Disclosure Letter sets forth as of the Agreement Dateclose of business on January 24, 2007, for each Company Restricted Stock UnitWarrant, (i) the name of the holder of such Company Restricted Stock Unit and Warrant, (ii) the exercise price per share of such Company Warrant, (iii) the number and kind of shares covered by such Company Restricted Stock UnitWarrant, (iv) the vesting schedule for such Company Warrant, (v) the extent such Company Warrant is vested as of January 24, 2007, (vi) whether such Company Warrant was issued in connection with the performance of services, and (vii) whether the exercisability of such Company Warrant shall be accelerated in any manner by any of the transactions contemplated by this Agreement or upon any other event or condition and the extent of acceleration, if any. All issued and outstanding Company Options and Company Restricted Stock Units Warrants were issued by the Company in material compliance in all material respects with all requirements of Applicable Law and all requirements set forth in applicable Contracts and were not issued in material violation of and are not subject to any right of rescission, right of first refusal or preemptive right. True and correct copies of the Company Option Plans, and the standard terms of option and restricted stock unit agreement under each Company Option Plan, each agreement for each Company Option that does not conform to the standard agreement under such Company Option Plan and each Company Warrant have been delivered made available by the Company to Acquiror’s legal counsel, and such plans and agreements have not been amended, modified or supplemented since being deliveredmade available, and there are no agreements, understandings or commitments to amend, modify or supplement such plans or agreements in any case from those deliveredmade available.