Common use of Capitalization; Indebtedness Clause in Contracts

Capitalization; Indebtedness. (a) As of the date hereof, the authorized share capital of the Company consists of 200,000,000 Ordinary Shares of which, as of the Cutoff Date, 37,358,063 Ordinary Shares (including 816,000 Ordinary Shares held in treasury) were issued and outstanding. All of the outstanding share capital of the Company has been duly authorized, validly issued and is fully paid and nonassessable and was issued in compliance with all applicable securities laws and was not issued in violation of any preemptive right, resale right, right of first refusal or similar right. As of the Cutoff Date, the Company had 1,222,808 Ordinary Shares reserved for issuance under its equity incentive plans in respect of which there were outstanding 1,868,324 RSUs and options to purchase 673,986 Ordinary Shares. The Company has no other share capital reserved for issuance, with the exception of the shares authorized for issuance in connection with the Note to be issued pursuant hereto. Except as set forth above or pursuant to this Agreement, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe for, any securities or obligations convertible into, or any contracts or commitments to issue or sell, any shares of capital stock, or any such warrants, convertible securities or obligations. The Company has reserved for issuance sufficient Ordinary Shares for issuance upon conversion of the Note. (b) Except as set forth on Exhibit D, the Company has no indebtedness for borrowed money as of the date of this Agreement. The fair salable value of the assets of the Company and its Subsidiaries, taken as a whole (including goodwill minus disposition costs) exceeds the fair value of their liabilities, and after giving effect to the transactions contemplated by the Transaction Documents, the Company and its Subsidiaries, taken as a whole, are not left with unreasonably small capital in relation to the Company’s business as presently conducted, and are able to pay their debts (including trade debts) as they mature.

Capitalization; Indebtedness. (a) As of the date hereof, the The authorized share capital stock of the Company consists of 200,000,000 Ordinary Shares (i) 50,000,000 shares of whichCompany Stock and (ii) 5,000,000 shares of preferred stock, par value $0.0001 per share (the “Company Preferred Stock”), of which 250,000 shares are designated as Series A Participating Preferred Stock (the “Company Series A Preferred Stock”). The Company has also issued Company Rights with respect to certain shares of Company Series A Preferred Stock pursuant to the Company Rights Agreement. The rights and privileges of the Cutoff DateCompany Stock and the Company Preferred Stock are as set forth in the Company’s Certificate of Incorporation, 37,358,063 Ordinary Shares and the rights and privileges of the Company Series A Participating Preferred Stock, par value $0.0001 per share, are as set forth in the Company Rights Agreement. As of May 4, 2009, there are (including 816,000 Ordinary Shares i) 9,473,572 shares of Company Stock issued and outstanding, (ii) no shares of Company Preferred Stock issued or outstanding, (iii) no shares of Company Stock held in treasurythe treasury of the Company or owned by any Subsidiary of the Company, (iv) were Company Options to purchase an aggregate of 2,410,192 shares of the Company Stock issued and outstanding and (v) Company Warrants to purchase 20,118 shares of Company Stock issued and outstanding. All outstanding shares of the outstanding share capital stock of the Company has been have been, and all shares that may be issued pursuant to any Company Option, the Company ESPP or any Company Warrant will be, when issued in accordance with the respective terms thereof, duly authorized, authorized and validly issued and is are (or, in the case of shares that have not yet been issued, will be) fully paid and paid, nonassessable and was issued in compliance with all applicable securities laws and was not issued in violation free of any preemptive right, resale right, right of first refusal or similar right. As of the Cutoff Date, the Company had 1,222,808 Ordinary Shares reserved for issuance under its equity incentive plans in respect of which there were outstanding 1,868,324 RSUs and options to purchase 673,986 Ordinary Shares. The Company has no other share capital reserved for issuance, with the exception of the shares authorized for issuance in connection with the Note to be issued pursuant hereto. Except as set forth above or pursuant to this Agreement, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe for, any securities or obligations convertible into, or any contracts or commitments to issue or sell, any shares of capital stock, or any such warrants, convertible securities or obligations. The Company has reserved for issuance sufficient Ordinary Shares for issuance upon conversion of the Noterights. (b) Except as set forth on Exhibit Din Section 4.05(a), there are no (i) shares of capital stock, voting securities or other Equity Interests of the Company, (ii) options, warrants or other rights, agreements, arrangements or commitments of any character to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound relating to the issued or unissued Equity Interests of the Company (other than Company Options, if any, issued after the date hereof in compliance with Section 6.01), (iii) securities convertible into or exchangeable for such Equity Interests, or obligating the Company to issue or sell any shares of its capital stock or other Equity Interests or (iv) securities convertible into or exchangeable for such capital stock of, or other Equity Interests in, the Company has (the items in clauses (i), (ii), (iii) and (iv) are referred to collectively as the “Company Securities”). There are no indebtedness for borrowed money as outstanding contractual obligations of the Company or any of its Subsidiaries affecting the voting rights of or requiring the repurchase, redemption or disposition of, any Company Securities. (c) As of the date of this Agreement. The fair salable value , the aggregate Indebtedness of the assets Company and its Subsidiaries is described on Section 4.05(c) of the Company Disclosure Schedule. For purposes of this Agreement, “Indebtedness” means, without duplication, any (i) indebtedness of the Company and its Subsidiaries for borrowed money, (ii) obligations under any note, bond or other debt security, (iii) capitalized lease obligations of the Company and its Subsidiaries as determined in accordance with GAAP, (iv) outstanding obligations (e.g., unreimbursed draws) of the Company and its Subsidiaries with respect to letters of credit of the Company and its Subsidiaries, taken as a whole (including goodwill minus disposition costsv) exceeds the fair value of their liabilitiesobligations relating to interest, currency, and after giving effect to the transactions contemplated by the Transaction Documents, other hedging contracts and arrangements and (vi) guarantees of the Company and its SubsidiariesSubsidiaries with respect to any of the foregoing. (d) The Company Options described in Section 4.05(a) have a weighted average exercise price of $1.9691 per share. Section 4.05(d) of the Company Disclosure Schedule contains a complete and correct list as of May 4, taken as a whole2009 of each outstanding Company Option, are not left with unreasonably small capital in relation including, to the Company’s business as presently conductedextent applicable, the holder thereof, date of grant, exercise price, vesting schedule and are able to pay their debts (including trade debts) as they maturestatus, expiration date and number of shares of Company Stock subject thereto.

Capitalization; Indebtedness. (a) As The authorized, issued and outstanding shares of Company Capital Stock issued by the Company are fully and accurately set forth in Section 3.4(a) of the Disclosure Schedule, including the name and number of shares of Company Capital Stock held by each stockholder of the Company. The Company has not granted any preemptive rights, rights of first refusal or other similar rights with respect to any of such Company Capital Stock and there are no offers, options, warrants, rights, agreements or commitments of any kind granted by the Company relating to the issuance, conversion, registration, voting, sale or transfer of shares of Company Capital Stock issued by the Company or obligating the Company to purchase or redeem any of such shares of Company Capital Stock. The Company Capital Stock set forth in Section 3.4(a) of the Disclosure Schedule constitute all of the outstanding equity interests issued by the Company, and such shares of Company Capital Stocks have been duly authorized and are validly issued and outstanding, fully paid and nonassessable. (b) The authorized, issued and outstanding equity interests of each of the Company’s Subsidiaries and the name of each record holder of such equity interests are fully and accurately set forth in Section 3.4(b) of the Disclosure Schedule. Neither the Company nor any of its Subsidiaries has granted any preemptive rights, rights of first refusal or other similar rights with respect to any of such equity interests of any Subsidiary of the Company and there are no offers, options, warrants, rights, agreements or commitments of any kind granted by any Subsidiary of the Company relating to the issuance, conversion, registration, voting, sale or transfer of equity interests of such Subsidiary or obligating the Company or any of its Subsidiaries to purchase or redeem any of such equity interests. All of the issued and outstanding equity interests of the Company’s Subsidiaries have been duly authorized and are validly issued and outstanding, fully paid and nonassessable. (c) Section 3.4(c) of the Disclosure Schedule sets forth a true and correct list, as of the date hereof, of all Options, including holder, exercise price, expiration date, vesting date, number of underlying shares and whether such Option is intended to qualify as an “incentive stock option” within the authorized share capital meaning of Section 422 of the Company consists Code. Each Option was granted with an exercise price per share at least equal to the fair market value of 200,000,000 Ordinary Shares a share of which, as Class B Common Stock on the date of the Cutoff Date, 37,358,063 Ordinary Shares (including 816,000 Ordinary Shares held in treasury) were issued and outstanding. All grant of the outstanding share capital of the Company has been duly authorized, validly issued and is fully paid and nonassessable and was issued in compliance with all applicable securities laws and was not issued in violation of any preemptive right, resale right, right of first refusal or similar right. As of the Cutoff Date, the Company had 1,222,808 Ordinary Shares reserved for issuance under its equity incentive plans in respect of which there were outstanding 1,868,324 RSUs and options to purchase 673,986 Ordinary Shares. The Company has no other share capital reserved for issuance, with the exception of the shares authorized for issuance in connection with the Note to be issued pursuant hereto. Except as set forth above or pursuant to this Agreement, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe for, any securities or obligations convertible into, or any contracts or commitments to issue or sell, any shares of capital stock, or any such warrants, convertible securities or obligations. The Company has reserved for issuance sufficient Ordinary Shares for issuance upon conversion of the NoteOption. (bd) Except as set forth on Exhibit D, the Company has no indebtedness for borrowed money as Section 3.4(d) of the date Disclosure Schedule sets forth a list of this Agreement. The fair salable value of the assets all outstanding Indebtedness of the Company and its Subsidiaries, taken as a whole (including goodwill minus disposition costs) exceeds the fair value of their liabilities, and after giving effect to the transactions contemplated by the Transaction Documents, the Company and its Subsidiaries, taken as a whole, are not left with unreasonably small capital in relation to the Company’s business as presently conducted, and are able to pay their debts (including trade debts) as they mature.

Capitalization; Indebtedness. (ai) As The Target Interests listed on Exhibit B constitute all of the date hereof, outstanding equity interests of Target. The only members of Target are the authorized share capital of the Company consists of 200,000,000 Ordinary Shares of which, as of the Cutoff Date, 37,358,063 Ordinary Shares (including 816,000 Ordinary Shares held in treasury) were issued and outstandingSellers. All of the outstanding share capital of the Company has Target Interests have been duly authorized, are validly issued issued, fully paid, and is fully paid and nonassessable and was non-assessable, were issued in compliance in all material respects with all applicable securities laws Laws, and was not issued are held of record by the respective Sellers as set forth in violation of any preemptive right, resale right, right of first refusal or similar right. As Section 4(b)(i) of the Cutoff Date, the Company had 1,222,808 Ordinary Shares reserved for issuance under its equity incentive plans in respect of which there were outstanding 1,868,324 RSUs and options to purchase 673,986 Ordinary Shares. The Company has no other share capital reserved for issuance, with the exception of the shares authorized for issuance in connection with the Note to be issued pursuant heretoDisclosure Schedule. Except as set forth above in Section 4(b)(i) of the Disclosure Schedule, there are no (i) outstanding or authorized options, warrants, calls, purchase rights, subscription rights, conversion rights, exchange rights, or other Contracts or commitments that could require Target to issue, sell, transfer or otherwise cause to become outstanding any of its equity interests or to redeem any of its equity interests, (ii) Contracts pursuant to this Agreementwhich registration rights in the securities of Target have been granted, (iii) preemptive rights or rights of first refusal with respect to the Company does not have Target Interests, (iv) Contracts among any current and former holders of equity interests of Target, or (v) voting trusts, proxies or similar agreements or Contracts with respect to any securities of Target. Except as set forth in Section 4(b)(i) of the Disclosure Schedule, there are no outstanding or authorized equity appreciation, phantom equity, profit participation, or similar rights of or with respect to Target, nor is Target party to any Contract or commitment that could required Target to issue, sell, transfer or grant or otherwise cause to become outstanding any options to purchasesuch equity appreciation, phantom equity, profit participation, or any rights or warrants to subscribe for, any securities or obligations convertible into, or any contracts or commitments to issue or sell, any shares of capital stock, or any such warrants, convertible securities or obligationssimilar rights. The Company has reserved for issuance sufficient Ordinary Shares for issuance upon conversion Set forth in Section 4(b)(i) of the NoteDisclosure Schedule is a complete and correct list of each Person holding Phantom Equity Units and the number of Phantom Equity Units held by each such Person. Target has made available to Buyer complete and correct copies of each award agreement pursuant to which Phantom Equity Units have been issued. (bii) Except as set forth on Exhibit D, the Company has no indebtedness for borrowed money as in Section 4(b)(ii) of the date Disclosure Schedule, neither Target nor any of this Agreement. The fair salable value of the assets of the Company and its Subsidiaries, taken as a whole (including goodwill minus disposition costs) exceeds the fair value of their liabilities, and after giving effect to the transactions contemplated by the Transaction Documents, the Company and its Subsidiaries, taken as a whole, are not left with unreasonably small capital in relation to the Company’s business as presently conducted, and are able to pay their debts (including trade debts) as they matureSubsidiaries has any Indebtedness.

Capitalization; Indebtedness. (a) As of the date hereof, the The authorized share capital stock of the Company consists of 200,000,000 Ordinary Shares (i) 10,000 shares of whichCompany Common Stock, as of the Cutoff Date, 37,358,063 Ordinary Shares (including 816,000 Ordinary Shares which 10,000 shares are issued and outstanding and none of which are held in treasury) were issued and outstanding. All of the outstanding share capital of the Company has been duly authorized, validly issued and is outstanding shares of Company Common Stock are validly issued, fully paid and nonassessable and was were issued free of preemptive (or similar) rights. All shares of Company Common Stock were issued in compliance with all applicable state and federal securities laws Laws, and was not issued in violation of any preemptive right, resale right, right of first refusal all offering memoranda or similar rightother offering materials relevant to such offerings. As Section 2.3(a) of the Cutoff DateCompany Disclosure Schedule sets forth a complete list of the holders of all outstanding shares of Company Common Stock, and the Company had 1,222,808 Ordinary Shares reserved for issuance under its equity incentive plans number of shares held by each such holder, and the share certificates issued to such holder in respect of which there were outstanding 1,868,324 RSUs and options to purchase 673,986 Ordinary Shares. The Company has no other share capital reserved for issuance, with the exception such shares both as of the shares authorized for issuance in connection with date hereof and immediately prior to the Note to be issued pursuant hereto. Except as set forth above or pursuant to this Agreement, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe for, any securities or obligations convertible into, or any contracts or commitments to issue or sell, any shares of capital stock, or any such warrants, convertible securities or obligations. The Company has reserved for issuance sufficient Ordinary Shares for issuance upon conversion of the NoteEffective Time. (b) Except as set forth on Exhibit D, the The Company has no indebtedness for borrowed money as issued and outstanding options or warrants to purchase or otherwise acquire Company Common Stock. There are no (A) Equity Rights of any character relating to the date of this Agreement. The fair salable value of the assets issued or unissued Equity Interests of the Company and its Subsidiariesor obligating the Company to issue or sell any shares of capital stock of, taken as a whole (including goodwill minus disposition costs) exceeds the fair value of their liabilities, and after giving effect to the transactions contemplated by the Transaction Documentsor other Equity Interests in, the Company and its SubsidiariesCompany, taken as a wholeor (B) authorized, are not left with unreasonably small issued or outstanding securities, instruments, evidence of indebtedness or agreements convertible, exchangeable or exercisable for shares of capital in relation to stock or Equity Interests of the Company’s business as presently conducted. There are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of Company Common Stock, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any other Person. The Company is not party to any stockholders’ agreement, voting trust agreement or registration rights agreement relating to any Equity Interests of the Company or any other Contract relating to disposition, voting or dividends or distributions with respect to any Equity Interests of the Company. All dividends, if any, on the Company Common Stock that have been declared or have otherwise accrued have been paid in full. (c) The Company has no outstanding Indebtedness. (d) Section 2.3(d) of the Company Disclosure Schedule sets forth a true and are able to pay their debts (including trade debts) as they maturecorrect schedule of the percentage of the Merger Consideration issuable in respect of each holder of Company Common Stock.