Common use of Capitalization; Equity Interests Clause in Contracts

Capitalization; Equity Interests. (a) The authorized capital stock of the Company consists of 50,000,000 shares of Common Stock and 10,980,926 shares of preferred stock, $.01 par value per share. As of the date of this Agreement, 5,161,917 shares of Common Stock, 5,000 shares of Series A Preferred Stock, 4,500 shares of Series B Preferred Stock, 1,333,334 shares of Series C Preferred Stock and 9,637,592 shares of Series D Preferred Stock, respectively, were issued and outstanding. The outstanding capital stock of the Company is owned of record as set forth in Section 3.3(a) of the Disclosure Schedule. (b) Section 3.3(b) of the Disclosure Schedule sets forth a complete list of all of the Company’s Subsidiaries as of the date of this Agreement, together with their respective jurisdictions of incorporation, authorized capital stock, number of shares issued and outstanding and record ownership of such shares. Except as set forth in Section 3.3(b) of the Disclosure Schedule, the Company does not have any Subsidiaries or own or hold any equity or other security interest in any other Person. All issued and outstanding shares of capital stock of the Company’s Subsidiaries have been duly authorized, were validly issued, are fully paid and nonassessable and subject to no preemptive rights and are directly or indirectly owned beneficially and of record by the Company, free and clear of all Encumbrances, and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock). (c) Except as set forth in Section 3.3(c) of the Disclosure Schedule, at the time of execution of this Agreement, no shares of capital stock or other voting securities of the Company or any of its Subsidiaries are issued, reserved for issuance or outstanding. Except as set forth in Section 3.3(c) of the Disclosure Schedule, all outstanding shares of capital stock of the Company and its Subsidiaries were duly authorized and validly issued and are fully paid and nonassessable subject to no preemptive rights. Except as set forth in Section 3.3(c) of the Disclosure Schedule, there are no bonds, debentures, notes or other indebtedness or securities of the Company or any of its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company or such Subsidiary may vote. Except as set forth in Section 3.3(c) of the Disclosure Schedule, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which any such Person is bound obligating such Person to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of such Person or obligating such Person to issue, grant, extend or enter into any such security, option, warrant, call right, commitment, agreement, arrangement or undertaking. Except as set forth in Section 3.3(c) of the Disclosure Schedule, there are no outstanding rights, commitments, agreements, arrangements or undertakings of any kind obligating the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or other voting securities of the Company or any of its Subsidiaries or any securities of the type described in the two immediately preceding sentences.

Capitalization; Equity Interests. (a) The authorized capital stock of the Company consists of 50,000,000 700,000 shares of Company Common Stock and 10,980,926 shares of preferred stock, $.01 par value per shareStock. As of the date of this Agreement, 5,161,917 194,193.29 shares of Company Common Stock, 5,000 shares of Series A Preferred Stock, 4,500 shares of Series B Preferred Stock, 1,333,334 shares of Series C Preferred Stock and 9,637,592 shares of Series D Preferred Stock, respectively, were issued and outstandingoutstanding and 39,368.6 shares of Company Common Stock were reserved for future issuance pursuant to the Options outstanding on such date. The As of the date of this Agreement, the outstanding capital stock of the Company is owned of record as set forth in Section 3.3(a) of the Disclosure ScheduleSchedule 4.3(a). (b) Section 3.3(bSchedule 4.3(b) of the Disclosure Schedule sets forth a complete list of all each of the Company’s Subsidiaries as of Subsidiaries. The Company does not own or hold any equity interest in any Person other than the date of this Agreement, together with their respective jurisdictions of incorporation, authorized capital stock, number of shares issued and outstanding and record ownership of such sharesCompany’s Subsidiaries. Except as set forth in Section 3.3(b) of the Disclosure ScheduleSchedule 4.3(b), the Company does not have any Subsidiaries or own or hold any equity or other security interest in any other Person. All all issued and outstanding shares of capital stock of the Company’s Subsidiaries have been duly authorized, were validly issued, are fully paid and nonassessable and subject to no preemptive rights and are directly or indirectly owned beneficially and of record by the Company, free and clear of all EncumbrancesLiens, other than (i) Liens which were incurred by Parent or Merger Sub or which Parent or Merger Sub causes such Subsidiary to incur as a result of the transactions contemplated by this Agreement and free of any other limitation or restriction (including any restriction on ii) Liens that will be removed prior to the right to vote, sell or otherwise dispose of such capital stock)Closing. (c) Except as set forth in Section 3.3(c) of the Disclosure Schedule, at the time of execution of this AgreementSchedule 4.3(c), no shares of capital stock or other voting securities of the Company or any of its Subsidiaries are issued, reserved for issuance or outstandingissuance. Except as set forth in Section 3.3(c) of the Disclosure Schedule, all All outstanding shares of capital stock of the Company and its Subsidiaries were duly authorized and validly issued and are fully paid and nonassessable and, except as set forth in Schedule 4.3(c), are subject to no preemptive rights. Except as set forth in Section 3.3(c) of the Disclosure ScheduleSchedule 4.3(c), there are no bonds, debentures, notes or other indebtedness Indebtedness or securities of the Company or any of its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company or such Subsidiary may vote. Except as set forth in Section 3.3(cSchedule 4.3(c) of the Disclosure Scheduleand other than pursuant to a Plan, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind or stock appreciation, phantom stock, profit participation or similar rights whatsoever to which the Company or any of its Subsidiaries is a party or by which party, giving any such Person is bound obligating such Person the right to issue, deliver or sell, or cause to be issued, delivered or sold, additional acquire any shares of capital stock or other voting securities of such Person the Company or obligating such Person to issue, grant, extend or enter into any such security, option, warrant, call right, commitment, agreement, arrangement or undertakingof its Subsidiaries. Except as set forth in Section 3.3(c) of the Disclosure ScheduleSchedule 4.3(c), there are no outstanding rights, commitments, agreements, arrangements or undertakings of any kind obligating the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or other voting securities of the Company or any of its Subsidiaries or any securities of the type described in the two immediately preceding sentences. To the Company’s Knowledge, there are no irrevocable proxies and no voting agreements with respect to any shares of capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries.

Capitalization; Equity Interests. (a) The authorized capital stock of the Company consists of 50,000,000 40,000,000 shares of Common Stock and 10,980,926 100,000 shares of preferred stock, $.01 par value $1.00 per share. As of the date of this Agreement, 5,161,917 (i) 16,677,109 shares of Common Stock, 5,000 Stock and 100 shares of Series A Preferred Stock, 4,500 shares of Series B Preferred Stock, 1,333,334 shares of Series C Preferred Stock and 9,637,592 shares of Series D F Preferred Stock, respectively, were issued and outstanding. The outstanding capital stock , all of which are duly authorized, validly issued, fully paid and nonassessable, (ii) 4,460,501 shares of Common Stock are held in the treasury of the Company is and (iii) no shares of Common Stock are held by wholly-owned of record as set forth in Section 3.3(a) Subsidiaries of the Disclosure ScheduleCompany. (b) Section 3.3(b) of the Disclosure Schedule sets forth a complete list of all of the Company’s Subsidiaries as of the date of this Agreement, together with their respective jurisdictions of incorporation, authorized capital stock, number of shares issued and outstanding and record ownership of such shares. Except as set forth in Section 3.3(b) of the Disclosure Schedule, the Company does not have any Subsidiaries or own or hold any equity or other security interest in any other Person. All Except as set forth in Section 3.3(b) of the Disclosure Schedule, all issued and outstanding shares of capital stock of the Company’s Subsidiaries have been duly authorized, were validly issued, are fully paid and nonassessable and subject to no preemptive rights and are directly or indirectly owned beneficially and of record by the Company, free and clear of all Encumbrances, and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock). (c) Except for (i) issued and outstanding Common Stock and Series F Preferred Stock referenced in Section 3.3(a)(i) and 3.3(a)(ii), (ii) 1,459,017 shares of Common Stock reserved for issuance upon exercise of Options granted under the Option Plans, (iii) 1,689,764 shares of Common Stock reserved for issuance upon exercise of the Warrants, (iv) shares reserved for issuance pursuant to the ESPP, and (v) as otherwise set forth in Section 3.3(c) of the Disclosure Schedule, at the time of execution of this Agreement, no shares of capital stock or other voting securities of the Company or any of its Subsidiaries are issued, reserved for issuance or outstanding. Except as set forth in Section 3.3(c) of the Disclosure Schedule, all All outstanding shares of capital stock of the Company and its Subsidiaries have been duly authorized, were duly authorized and validly issued and issued, are fully paid and nonassessable and subject to no preemptive rights. Except for the Common Stock and Series F Preferred Stock, or as otherwise set forth in Section 3.3(c) of the Disclosure Schedule, there are no bonds, debentures, notes or other indebtedness or securities of the Company or any of its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company or such Subsidiary may vote. Except for the Options, Warrants, Restricted Stock and rights under the ESPP or as otherwise set forth in Section 3.3(c) of the Disclosure Schedule, there are no securities, options, warrants, calls, rights, commitments, Table of Contents agreements, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party relating to the issued or unissued capital stock of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or other equity interests in, the Company or any Subsidiary. Except for the Options, Warrants, Restricted Stock and rights under the ESPP or as otherwise set forth in Section 3.3(c) of the Disclosure Schedule, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which any such Person is bound obligating such Person to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of such Person or obligating such Person to issue, grant, extend or enter into any such security, option, warrant, call right, commitment, agreement, arrangement or undertaking. Except as set forth in Section 3.3(c) of the Disclosure Schedule, there are no outstanding rights, commitments, agreements, arrangements or undertakings of any kind obligating the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or other voting securities of the Company or any of its Subsidiaries or any securities of the type described in the two immediately preceding sentencesthis Section 3.3(c).

Capitalization; Equity Interests. (a) The authorized capital stock of the Company consists of 50,000,000 15,000,000 shares of Class A Common Stock Stock, $0.01 par value per share, 1,000,000 shares Class B Common Stock, $0.01 par value per share and 10,980,926 26,000,000 shares of preferred stock, $.01 0.01 par value per share. As of the date of this Agreement, 5,161,917 10,896,324 shares of Class A Common Stock, 5,000 no shares of Class B Common Stock and 4,767,799 shares of Series A Preferred Stock, 4,500 shares of Series B Preferred Stock, 1,333,334 shares of Series C Preferred Stock and 9,637,592 shares of Series D Preferred Stock, respectively, were issued and outstanding. The As of the date of this Agreement, the outstanding capital stock of the Company is owned of record as set forth in Section 3.3(a) of the Disclosure Schedule. (b) Section 3.3(b) of the Disclosure Schedule sets forth a complete list of all each of the Company’s Subsidiaries as of the date of this Agreement, together with their respective jurisdictions of incorporation, Subsidiaries’ authorized capital stock, stock and the number of shares issued and outstanding and record ownership of such sharesoutstanding. Except as set forth in Section 3.3(b) of the Disclosure Schedule, the Company does not have any Subsidiaries or own or hold any equity or other security interest in any other Person. All Except as set forth in Section 3.3(b) of the Disclosure Schedule, all issued and outstanding shares of capital stock of the Company’s Subsidiaries have been duly authorized, were validly issued, are fully paid and nonassessable and subject to no preemptive rights and are directly or indirectly owned beneficially and of record by the Company, free and clear of all Encumbrances, and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock). (c) Except as set forth in Section 3.3(c) of the Disclosure Schedule, at as of the time of execution date of this Agreement, no shares of capital stock or other voting securities of the Company or any of its Subsidiaries are issued, reserved for issuance or outstandingissuance. Except as set forth in Section 3.3(c) of the Disclosure Schedule, all outstanding shares of capital stock of the Company and its Subsidiaries were duly authorized and validly issued and are fully paid and nonassessable subject to no preemptive rights. Except as set forth in Section 3.3(c) of the Disclosure Schedule, there are no bonds, debentures, notes or other indebtedness or securities of the Company or any of its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company or such Subsidiary may vote. Except as set forth in Section 3.3(c) of the Disclosure Schedule, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements arrangements, subscriptions or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which any such Person is bound obligating such Person to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of such Person or obligating such Person to issue, grant, extend or enter into any such security, option, warrant, call right, commitment, agreement, arrangement arrangement, subscription or undertaking. Except as set forth in Section 3.3(c) of the Disclosure Schedule, there are no outstanding rights, commitments, agreements, arrangements arrangements, subscriptions or undertakings of any kind obligating the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or other voting securities of the Company or any of its Subsidiaries or any securities of the type described in the two immediately preceding sentences.

Capitalization; Equity Interests. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 50,000,000 (i) 250,000 shares of Common Stock and 10,980,926 Preferred Stock, of which 118,319.72 shares (excluding shares of preferred stockPreferred Stock that are issuable as accrued but unpaid dividends thereon) are issued and outstanding, $.01 par value per share. As of the date of this Agreement, 5,161,917 and (ii) 250,000 shares of Common Stock, 5,000 of which 118,529.13 shares (including 1,500 shares of Series A Preferred Restricted Stock, 4,500 shares of Series B Preferred Stock, 1,333,334 shares of Series C Preferred Stock and 9,637,592 shares of Series D Preferred Stock, respectively, were ) are issued and outstanding. The outstanding capital stock of the Company is owned of record as set forth in Section 3.3(a) of the Disclosure Schedule. (b) Section 3.3(b4.3(a) of the Disclosure Schedule sets forth a complete list of all of the Company’s Subsidiaries forth, as of the date of this Agreement, together with their respective jurisdictions the record ownership of incorporationthe outstanding shares of Preferred Stock and Common Stock and any declared and accrued, but unpaid, dividends thereon, which constitutes all issued and outstanding shares of capital stock of the Company. Section 4.3(a) of the Disclosure Schedule contains a complete and correct list, as of the date of this Agreement, of each outstanding Company Option, including the holder, the date of grant and the exercise price thereof. (b) Section 4.3(b) of the Disclosure Schedule sets forth each of the Company’s Subsidiaries’ authorized capital stock, stock and the number of shares of capital stock issued and outstanding (or, if such Subsidiary is not a corporation, the number of issued and record ownership outstanding voting securities of such sharesSubsidiary or other ownership interests therein). Except as set forth in Section 3.3(b4.3(b) of the Disclosure Schedule, the Company does not have any Subsidiaries or own or hold any equity interest or other security interest in any other Person. All Except as set forth in Section 4.3(b) of the Disclosure Schedule, all issued and outstanding shares of capital stock of or other voting securities of, or ownership interests in, the Company’s Subsidiaries have been duly authorized, were validly issued, are fully paid and nonassessable and subject to no preemptive rights and are directly or indirectly owned beneficially and of record by the Company, free and clear of all EncumbrancesLiens, and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock, other voting securities or ownership interests). (c) Except for the Company Equity Plan, the Change of Control Bonus Agreements and the Change of Control Bonus Plan, neither the Company nor any Subsidiary of the Company has adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity or equity-related compensation to any Person (whether payable in shares, cash or otherwise), in each case that remains in effect as of the date hereof. The Company has reserved 50,000 shares of Common Stock for issuance to employees and directors of, and consultants to, the Company upon the issuance of stock or the exercise of options or the granting or purchase of restricted stock or the granting of restricted stock units granted under the Company Equity Plan, of which (i) 1,248 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised options granted under the Company Equity Plan, and (ii) 48,752 shares remain available for future grant. Each Company Option was originally granted with an exercise price that the Board of Directors of the Company in good faith, based on a reasonable valuation method utilized at the time of grant, determined to be at least equal to the fair market value of a share of Common Stock on the date of grant. True and complete copies of all agreements issued under the Company Equity Plan have been made available to Buyer, along with any amendments thereto, and except for this Agreement, there are no agreements to amend, modify or supplement such agreements from the forms thereof made available to Buyer. No holder of Company Options has the ability to early exercise any Company Options for shares of Restricted Stock under the Company Equity Plan or any other contract or agreement relating to such Company Options. All holders of Company Options are current or former employees or non-employee directors of the Company, or their respective heirs, administrators or assigns. (d) Except as set forth in Section 3.3(c4.3(a) above or in Section 4.3(a), Section 4.3(b) or Section 4.3(d) of the Disclosure Schedule, at as of the time of execution date of this Agreement, no shares of capital stock or other voting securities of of, or ownership interests in, the Company or any of its Subsidiaries are issued, reserved for issuance or outstandingissuance. Except as set forth in Section 3.3(c4.3(d) of the Disclosure Schedule, all outstanding shares of capital stock of or other voting securities of, or ownership interests in, the Company and its Subsidiaries were duly authorized and validly issued and are and, with respect to shares of capital stock, fully paid and nonassessable nonassessable, and none of such shares, other voting securities or ownership interests are subject to no preemptive rights. Except as set forth in Section 3.3(c4.3(d) of the Disclosure Schedule, there are no bonds, debentures, notes or other indebtedness or securities of the Company or any of its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders the holders of the Company Company’s or such Subsidiary of the Company’s voting securities or interests may vote. Except as set forth in Section 3.3(c4.3(a) or Section 4.3(d) of the Disclosure Schedule, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which any such Person is bound obligating such Person to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of of, or ownership interests in, such Person or obligating such Person to issue, grant, extend or enter into any such security, option, warrant, call right, commitment, agreement, arrangement or undertaking. Except as set forth in Section 3.3(c4.3(d) of the Disclosure Schedule, there are no outstanding rights, commitments, agreements, arrangements or undertakings of any kind obligating the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or other voting securities of of, or ownership interests in, the Company or any of its Subsidiaries or any securities of the type described in the two immediately preceding sentences.

Capitalization; Equity Interests. (a) The authorized capital stock of the Company consists of 50,000,000 1,000,000,000 shares of Common Stock and 10,980,926 50,000,000 shares of preferred stock, $.01 par value $0.001 per shareshare (the "Preferred Stock"). As of the date of this Agreement, 5,161,917 (i) 93,703,445 shares of Common Stock, 5,000 shares of Series A Preferred Stock, 4,500 shares of Series B Preferred Stock, 1,333,334 shares of Series C Preferred Stock and 9,637,592 shares of Series D Preferred Stock, respectivelyincluding the associated Rights, were issued and outstanding. The outstanding capital stock (of which 1,629,076 are shares of Restricted Stock), (ii) 29,021 shares of Common Stock are held in the treasury of the Company, (iii) no shares of Common Stock are held by Subsidiaries of the Company is owned and (iv) no shares of record as set forth in Section 3.3(a) of the Disclosure SchedulePreferred Stock are outstanding. (b) Section 3.3(b) of the Disclosure Schedule sets forth a complete true and correct list of all of the Company’s Subsidiaries as of the date of this Agreement's Subsidiaries, together with their respective jurisdictions of incorporation, authorized capital stock, number of shares issued and outstanding and record ownership of such shares. Except as set forth in Section 3.3(b) of the Disclosure Schedule, the Company does not have any Subsidiaries or own or hold hold, directly or indirectly, any equity or other security interest interest, or has made any investment, in any other Person. All Except as set forth in Section 3.3(b) of the Disclosure Schedule, all issued and outstanding shares of capital stock of the Company’s 's Subsidiaries have been duly authorized, were validly issued, are fully paid and nonassessable and subject to no preemptive rights and are directly or indirectly owned beneficially and of record by the Company, free and clear of all Encumbrances, and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock). (c) Except for (i) issued and outstanding Common Stock referenced in Sections 3.3(a)(i) and 3.3(a)(ii), (ii) 20,129,457 shares of Common Stock reserved for issuance upon exercise of Options granted under the Option Plans, as described in Section 3.3(d) of the Disclosure Schedule, (iii) 5,992,124 shares of Common Stock reserved for issuance upon exercise of the Warrants, as described in Section 3.3(e) of the Disclosure Schedule, (iv) 100,000 shares of Preferred Stock designated as "Series A Preferred Stock" reserved for issuance in accordance with the Rights Agreement, and (v) as set forth in Section 3.3(cSections 3.3(b) and (c) of the Disclosure Schedule, at the time of execution of this Agreement, no shares of capital stock or other voting securities of the Company or any of its Subsidiaries are issued, reserved for issuance or outstanding. Except as set forth in Section 3.3(c) of the Disclosure Schedule, all All outstanding shares of capital stock of the Company and its Subsidiaries have been duly authorized, were duly authorized and validly issued and issued, are fully paid and nonassessable and subject to no preemptive rights. Except for the Common Stock, or as set forth in Section 3.3(c3.3(b) of the Disclosure Schedule, there are no bonds, debentures, notes or other indebtedness or securities of the Company or any of its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company or such Subsidiary may vote. Except for the Options, Warrants, Restricted Stock and Rights or as otherwise set forth in Section 3.3(c) of the Disclosure Schedule, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party relating to the issued or unissued capital stock of the Company or any Subsidiary. Except for the Options, Warrants, Restricted Stock and Rights or as otherwise set forth in Section 3.3(c) of the Disclosure Schedule, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which any such Person is bound obligating such Person to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of such Person the Company or any of its Subsidiaries or obligating such Person to issue, grant, extend or enter into any such security, option, warrant, call right, commitment, agreement, arrangement or undertaking. Except as set forth in Section 3.3(c) of the Disclosure Schedule, there are no outstanding rights, commitments, agreements, arrangements or undertakings of any kind obligating the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or other voting securities of the Company or any of its Subsidiaries or any securities of the type described in this Section 3.3(c). (d) The names of the two immediately preceding sentencesoptionee of each Option, the date of grant of each Option, the number of shares subject to each such Option, the expiration date of each such Option, and the price at which each such Option may be exercised under the Option Plans are set forth in Section 3.3(d) of the Disclosure Schedule. (e) The name of each holder of Warrants as of the date hereof, the date of issuance of each Warrant, the number of shares subject to each such Warrant, the expiration date of each such Warrant, and the price at which each such Warrant may be exercised, are set forth in Section 3.3(e) of the Disclosure Schedule.

Capitalization; Equity Interests. (a) The authorized capital stock of the Company consists of 50,000,000 (i) 72,300,000 shares of Common Stock and 10,980,926 (ii) 57,276,605 shares of preferred stockPreferred Stock, $.01 par value per shareof which (A) 28,350,632 shares are designated Series A Preferred Stock, and (B) 28,925,973 shares are designated Series B Preferred Stock. As of the date of this Agreement, 5,161,917 9,536,647 shares of Common Stock, 5,000 28,350,632 shares of Series A Preferred Stock, 4,500 and 28,925,973 shares of Series B Preferred Stock, 1,333,334 shares of Series C Preferred Stock and 9,637,592 shares of Series D Preferred Stock, respectively, were are issued and outstanding. The As of the date of this Agreement, the outstanding capital stock of the Company is owned of record as set forth in Section 3.3(a4.3(a) of the Disclosure Schedule. Section 4.3(a) of the Disclosure Schedule contains a complete and correct list as of the date hereof of each outstanding Option, including the number of Shares subject to each such Option, the grant date, exercise price and vesting schedule for such Option, the extent to which such Option is vested and exercisable and the date on which such Option expires. Except as set forth on Section 4.3(a) of the Disclosure Schedule, no Shares are held by the Company in treasury. (b) Section 3.3(b4.3(b) of the Disclosure Schedule sets forth a complete list of all each of the Company’s Subsidiaries as of the date of this Agreement, together with their respective jurisdictions of incorporation, Subsidiaries’ authorized capital stock, stock and the number of shares of capital stock issued and outstanding (or, if such Subsidiary is not a corporation, the number of issued and record ownership outstanding voting securities of such sharesSubsidiary or other ownership interests therein). Except as set forth in Section 3.3(b4.3(b) of the Disclosure Schedule, the Company does and its Subsidiaries do not have any Subsidiaries or own or hold any equity or other security interest in any other Person. All Except as set forth in Section 4.3(b) of the Disclosure Schedule, all issued and outstanding shares of capital stock of or other voting securities of, or ownership interests in, the Company’s Subsidiaries have been duly authorized, were validly issued, are fully paid and nonassessable and subject to no preemptive rights and are directly or indirectly owned beneficially and of record by the Company, free and clear of all EncumbrancesLiens, and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock, other voting securities or ownership interests). (c) Each Option and share of Restricted Stock was granted in compliance with the terms of the Equity Plan and applicable Law in all material respects. Each Option was granted or issued at an exercise price equal to or greater than the fair market value of the underlying Common Stock on the date of grant, as determined in accordance with Section 409A of the Code, and none of the Options, Restricted Stock or any other securities or agreements constitute “deferred compensation” under Section 409A of the Code. True, correct and complete copies of (i) the Equity Plan and (ii) the form award agreements thereunder (and any award agreement that materially deviates from any such form award agreements) have been made available to Buyer, and such plans and agreements have not been amended, modified or * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission. supplemented since being made available or provided to Buyer, and there are no Contracts or understandings to amend, modify or supplement such plans, forms or agreements in any case from those furnished to Buyer. The Company does not have in effect any employee stock purchase plans other than the Equity Plan. Each Option that is vested is exercisable for an exercise price less than the Per Common Share Merger Consideration. (d) Except as set forth in Section 3.3(c4.3(d) of the Disclosure Schedule, at as of the time of execution date of this Agreement, no shares of capital stock or other voting securities of of, or ownership interests in, the Company or any of its Subsidiaries are issued, reserved for issuance or outstandingissuance. Except as set forth in Section 3.3(c) of the Disclosure Schedule, all All outstanding shares of capital stock of or other voting securities of, or ownership interests in, the Company and its Subsidiaries were duly authorized and validly issued and are and, with respect to shares of capital stock, fully paid and nonassessable nonassessable, and none of such shares, other voting securities or ownership interests are subject to no to, and were not issued in violation of, any purchase option, trust, call option, right of first refusal or offer, preemptive rightsright, subscription right or any similar right. Except as set forth in Section 3.3(c4.3(d) of the Disclosure Schedule, there are no bonds, debentures, notes or other indebtedness or securities of the Company or any of its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders the holders of the Company Company’s or such Subsidiary Subsidiary’s voting securities or interests may vote. Except as set forth in Section 3.3(c4.3(d) of the Disclosure Schedule, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which any such Person is bound obligating such Person to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of of, or ownership interests in, such Person or obligating such Person to issue, grant, extend or enter into any such security, option, warrant, call right, commitment, agreement, arrangement or undertaking. Except as set forth in Section 3.3(c4.3(d) of the Disclosure Schedule, there are no outstanding rights, commitments, agreements, arrangements or undertakings of any kind obligating the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or other voting securities of of, or ownership interests in, the Company or any of its Subsidiaries or any securities of the type described in the two immediately preceding sentences. Except as set forth in Section 4.3(d) of the Disclosure Schedule, there are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to the capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries. Except as set forth in Section 4.3(d) of the Disclosure Schedule, there are no irrevocable proxies and no voting trusts or voting agreements with respect to any ownership interests of, or other equity or voting interest in, the Company or any of its Subsidiaries to which the Company or any of its Subsidiaries is a party, or to the Company’s knowledge, to which a Securityholder is a party. Neither the Company nor any of its Subsidiaries are committed to declare, pay or set aside for payment any dividend or other distribution (whether in cash, stock, property or otherwise) in respect of any Shares or any other securities of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries are obligated or required to make any investment (including in the form of a loan or capital contribution) in any Person. (e) Section 4.3(e) of the Disclosure Schedule identifies: (i) each Person with an offer letter or other Contract that contemplates a grant of an Option, or who has otherwise * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission. been contingently promised Options, except for Options that have been granted, or rights terminated or forfeited, prior to the date of this Agreement (each, a “Specified Person”); (ii) the number of Shares underlying such contingently promised Options and the vesting schedule for such contingently promised Options; (iii) the number of Shares underlying such contingently promised Options eligible to receive Merger consideration pursuant to and in accordance with Section 3.1(b) hereof (each, an “Ungranted Option”); and (iv) the exercise price applicable to each Ungranted Option, assuming such award had been timely granted as an Option in the Company’s ordinary course of business (the “Deemed Exercise Price”).