Common use of Capitalization; Indebtedness Clause in Contracts

Capitalization; Indebtedness. (a) As of the date hereof, 8,940,241 Company Common Units are issued and outstanding and are owned beneficially and of record by the holders, and in the respective amounts, set forth in Company Disclosure Schedule corresponding to this Section 3.05(a). Assuming that the Reorganization Merger had been consummated as of the date hereof, there would be 9,783,485 Company Common Units issued and outstanding. All of the outstanding Company Common Units have been duly authorized and validly issued. (b) Except (A) as described in Section 3.05(a), (B) for repurchases of Company Common Units by the Company in connection with the termination of the employment of any employee of the Company or any Company Subsidiary pursuant to any Contracts set forth in Schedule 3.15 of the Company Disclosure Schedule and (C) for issuances of Company Common Units resulting solely from the Reorganization Merger in accordance with the terms of this Agreement, there are (x) no outstanding: (i) membership interests or other voting or non-voting securities of the Company; (ii) securities of the Company convertible into or exchangeable for membership interests or other voting or non-voting securities of the Company; or (iii) options, warrants, subscriptions, calls, preemptive rights, agreements arrangements or other rights to acquire from the Company, and no obligation of the Company to issue, transfer or sell, any membership interests, voting or non-voting securities or securities convertible into or exchangeable for membership interests or voting or non-voting securities of the Company, or committing the Company to grant any such options, warrants, subscriptions, calls, preemptive rights, agreements, arrangements or other rights or obligations; and (y) no obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any Company Common Units or any voting trusts, registration rights agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of the Company Common Units. (c) As of the date hereof, except as described in the Schedule 3.05(c) and for Indebtedness less than $500,000 in the aggregate, none of the Company or any Company Subsidiary has any outstanding Indebtedness.

Capitalization; Indebtedness. (a) As The authorized capital stock of the date hereofCompany consists of (i) 125,000,000 shares of Company Stock and (ii) 5,000,000 shares of preferred stock, 8,940,241 par value $0.0001 per share (the “Company Common Units Preferred Stock”). The rights and privileges of the Company Stock and the Company Preferred Stock are issued and outstanding and are owned beneficially and of record by the holders, and in the respective amounts, as set forth in the Company’s Certificate of Incorporation. As of September 4, 2009, there are (i) 31,343,946 shares of Company Disclosure Schedule corresponding to this Section 3.05(a). Assuming that Stock issued and outstanding, (ii) no shares of Company Preferred Stock issued or outstanding, (iii) no shares of Company Stock held in the Reorganization Merger had been consummated as treasury of the date hereofCompany or owned by any Subsidiary of the Company, there would be 9,783,485 (iv) Company Common Units Options to purchase an aggregate of 2,851,272 shares of Company Stock issued and outstanding, and (v) Company RSUs representing the right to acquire 802,469 shares of Company Stock issued and outstanding. All outstanding shares of capital stock of the outstanding Company Common Units (including Company Restricted Stock) have been been, and all shares that may be issued pursuant to any Company Option, the Company ESPP or any Company RSU will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and are (or, in the case of shares that have not yet been issued, will be) fully paid, nonassessable and free of preemptive rights. (b) Except (A) as described set forth in Section 3.05(a4.5(a), there are no (Bi) for repurchases shares of Company Common Units by the Company in connection with the termination capital stock, voting securities or other Equity Interests of the employment Company, (ii) options, warrants or other rights, agreements, arrangements or commitments of any employee of character to which the Company or any of its Subsidiaries is a party or by which the Company Subsidiary pursuant or any of its Subsidiaries is bound relating to any Contracts set forth in Schedule 3.15 the issued or unissued Equity Interests of the Company Disclosure Schedule and (C) for issuances of other than Company Common Units resulting solely from Options, Company Restricted Stock or Company RSUs, if any, issued after the Reorganization Merger date hereof in accordance compliance with the terms of this AgreementSection 6.1), there are (x) no outstanding: (i) membership interests or other voting or non-voting securities of the Company; (ii) securities of the Company convertible into or exchangeable for membership interests or other voting or non-voting securities of the Company; or (iii) options, warrants, subscriptions, calls, preemptive rights, agreements arrangements or other rights to acquire from the Company, and no obligation of the Company to issue, transfer or sell, any membership interests, voting or non-voting securities or securities convertible into or exchangeable for membership interests or voting or non-voting securities of the Companysuch Equity Interests, or committing obligating the Company to grant issue or sell any such options, warrants, subscriptions, calls, preemptive rights, agreements, arrangements shares of its capital stock or other rights Equity Interests or obligations; (iv) securities convertible into or exchangeable for such capital stock of, or other Equity Interests in, the Company (the items in clauses (i), (ii), (iii) and (yiv) are referred to collectively as the “Company Securities”). There are no outstanding contractual obligations of the Company or any Company Subsidiary to of its Subsidiaries affecting the voting rights of or requiring the repurchase, redeem redemption or otherwise acquire disposition of, any Company Common Units or any voting trusts, registration rights agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of the Company Common UnitsSecurities. (c) As of the Business Day preceding the date hereofof this Agreement, except as described in the Schedule 3.05(c) and for aggregate Indebtedness less than $500,000 in the aggregate, none of the Company and its Subsidiaries is described in all material respects on Section 4.5(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, (v) obligations relating to interest, currency, and other hedging contracts and arrangements and (vi) guarantees of the Company and its Subsidiaries with respect to any of the foregoing owed by Third Parties. (d) Section 4.5(d) of the Company Subsidiary has any Disclosure Schedule contains a complete and correct list as of September 7, 2009 of each outstanding IndebtednessCompany Option, share of Company Restricted Stock still subject to vesting and Company RSU, including, to the extent applicable, the holder thereof, date of grant, exercise price, vesting schedule and status, expiration date and number of shares of Company Stock subject thereto.