Common use of Capitalization of Target Clause in Contracts

Capitalization of Target. As of the date of this Agreement, the authorized capital stock of Target consists of (i) 370,000,000 shares of common stock (the “Target Common Stock”), of which 42,910,340 shares are issued and outstanding, and (ii) 257,499,620 shares of preferred stock (the “Target Preferred Stock”, and along with the Target Common Stock, the “Target Capital Stock”), 2,000,000 shares of which are designated as Series 1 Preferred Stock, all of which are issued and outstanding; 14,638,892 shares of which are designated as Series A Preferred Stock, 14,222,225 of which are issued and outstanding; 42,558,841 shares of which are designated as Series B Preferred Stock, all of which are issued and outstanding; 28,301,887 shares of which are designated as Series C Preferred Stock, all of which are issued and outstanding; and 170,000,000 shares of which are designated as Series D Preferred Stock, 168,924,005 of which are issued and outstanding (the “Target Series D Preferred Stock”). All outstanding shares of Target Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are free of any Encumbrances, and are not subject to preemptive rights or rights of first refusal created by statute, the Restated Articles or Bylaws of Target or any Contract to which Target is a party or by which it is bound. As of the date of this Agreement, (x) there are 21,252,194 shares of Target Common Stock reserved for issuance under Target’s 2011 Equity Incentive Plan (the “2011 Plan”), of which, as of the date of this Agreement, 11,057,854 shares were subject to outstanding options, (y) there are 10,194,340 shares that have been reserved for future option or stock grants and 9,000 shares have been issued upon the exercise of options issued pursuant to the 2011 Plan. As of the date of this Agreement, zero shares have been reserved for future option or stock grants and 13,367,264 shares have been issued upon the exercise of options issued pursuant to the Target’s 2001 Equity Incentive Plan (the “2001 Plan”). Zero shares have been reserved for future option or stock grants and 2,890,231 shares have been issued upon the exercise of options issued pursuant to the ImmenStar, Inc. 2006 Global Share Plan (together with the 2011 Plan and the 2001 Plan, the “Target Incentive Plans” and each a “Target Incentive Plan,” and the options outstanding thereunder, the “Target Options”). No other stock option plan or other equity based compensation plan or agreement is currently in effect, and there are no shares of Target Capital Stock reserved for issuance under any other equity based compensation plan or Contract. Target has delivered to Acquiror true and complete copies of each form of Contract evidencing each Target Option and each Contract evidencing a Target Option that materially deviates from the forms. Except for the rights created pursuant to this Agreement and the rights disclosed in the preceding sentences, there are no other options, warrants, restricted stock awards, phantom equity awards, calls, rights, commitments or agreements of any character to which Target is a party or by which it is bound, obligating Target to issue, deliver, sell, repurchase or redeem or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Target Capital Stock or any other security or ownership interest of Target or obligating Target to grant, extend, accelerate the vesting of, change the price of, or otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. All shares of Target Capital Stock issuable upon exercise of the options described in this Section 3.5 will be, if and when issued pursuant to the respective terms of such options, duly authorized, validly issued, fully paid and nonassessable. There are no other Contracts relating to voting, purchase or sale of Target Capital Stock or any other securities or ownership interests of Target (A) between or among Target and any of the Stockholders; and (B) to Target’s Knowledge, between or among any of the Stockholders. All shares of outstanding Target Capital Stock and rights to acquire Target Capital Stock were issued in compliance with all applicable federal and state securities laws.

Capitalization of Target. As of the date of this Agreement, the authorized capital stock of Target consists of (i) 370,000,000 60,000,000 shares of common stock Common Stock (the “Target Common Stock”), of which 42,910,340 13,016,144 shares are issued and outstanding, and (ii) 257,499,620 31,088,862 shares of preferred stock Preferred Stock (the “Target Preferred Stock”, and along with the Target Common Stock, the “Target Capital Stock”), 2,000,000 shares (i) 15,150,000 of which are designated as Series 1 A Preferred Stock, all of which are issued and outstanding; 14,638,892 shares , (ii) 79,250 of which are designated as Series A A-1 Preferred Stock, 14,222,225 42,702 of which are issued and outstanding; 42,558,841 shares , (iii) 2,322,700 of which are designated as Series B Preferred Stock, all 2,322,699 of which are issued and outstanding; 28,301,887 shares , (iv) 1,350,000 of which are designated as Series C B-1 Preferred Stock, none of which are issued and outstanding, (iv) 1,936,912 of which are designated as Series D Preferred Stock, all of which are issued and outstanding; , and 170,000,000 shares (iv) 10,250,000 of which are designated as Series D E Preferred Stock, 168,924,005 10,186,614 of which are issued and outstanding (the “Target Series D Preferred Stock”)outstanding. All outstanding shares of Target Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are free of any Encumbrancesliens or encumbrances other than any liens or encumbrances created by or imposed upon the holders thereof, and are not subject to preemptive rights or rights of first refusal created by statute, the Restated Articles Certificate or Bylaws of Target or any Contract agreement to which Target is a party or by which it is bound. As of the date of this Agreement, (x) there There are 21,252,194 9,444,540 shares of Target Common Stock reserved for issuance under Target’s 2011 Equity Incentive 2005 Stock Plan (the “2011 Target Incentive Plan”), of which, as of the date of this Agreement, 11,057,854 shares which 6,603,186 were subject to outstanding optionsoptions (the “Target Options”), (y) there are 10,194,340 1,480,360 shares that have been reserved for future option or stock grants and 9,000 1,360,994 shares have been issued upon the exercise of options issued pursuant to the 2011 Plan. As of the date of this Agreement, zero shares have been reserved for future option or stock grants and 13,367,264 shares have been issued upon the exercise of options issued pursuant to the Target’s 2001 Equity Incentive Plan (the “2001 Plan”). Zero shares have been reserved for future option or stock grants and 2,890,231 shares have been issued upon the exercise of options issued pursuant to the ImmenStar, Inc. 2006 Global Share Plan (together with the 2011 Plan and the 2001 Plan, the “Target Incentive Plans” and each a “Target Incentive Plan,” and the options outstanding thereunder, the “Target Options”). No other stock option plan or other equity based compensation plan or agreement is currently in effect, and there are no shares of Target Capital Stock reserved for issuance under any other equity based compensation plan or Contractplan. There are 1,350,000 shares of Series B-1 Preferred Stock of Target issuable upon exercise of outstanding warrants to purchase shares of Target Capital Stock (the “Target Warrants”). Target has delivered to Acquiror or made available true and complete copies of each form of Contract Target Option, and each form of option agreement, if any, and warrant and warrant agreement, evidencing each Target Option and each Contract evidencing a Option, if any, or Target Option that materially deviates from the formsWarrant, if any. Except for the rights created pursuant to this Agreement and the rights disclosed in the preceding sentences, there are no other options, warrants, restricted stock awards, phantom equity awards, calls, rights, commitments or agreements of any character to which Target is a party or by which it is bound, obligating Target to issue, deliver, sell, repurchase or redeem or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Target Capital Stock or any other security or ownership interest of Target or obligating Target to grant, extend, accelerate the vesting of, change the price of, or otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. All shares of Target Capital Common Stock issuable upon exercise of the options described in this Section 3.5 will be, if and when issued pursuant to the respective terms of such optionsoptions or warrants, duly authorized, validly issued, fully paid and nonassessable. There are no other Contracts contracts, commitments or agreements relating to voting, purchase or sale of Target Capital Stock or any other securities or ownership interests of Target (A) between or among Target and any of the Stockholdersits stockholders; and (B) to Target’s Knowledge, between or among any of the StockholdersTarget’s stockholders. All shares of outstanding Target Capital Stock and rights to acquire Target Capital Stock were issued in compliance with all applicable federal and state securities laws.

Capitalization of Target. As of the date of this Agreementhereof, the Target's authorized ------------------------ capital stock of Target which is common stock consists of (i) 370,000,000 4,000,000 shares of common stock stock, $.01 par value per share (the “"Target Common Stock”Shares"), of which 42,910,340 (i) 216,655 shares are issued and outstanding, and (ii) 257,499,620 no shares are held in treasury, (iii) 29,872 shares are reserved for issuance upon the conversion of outstanding warrants, and (iv) 338,775 shares are reserved for issuance upon the exercise or conversion of outstanding options granted or issued by Target (which have an average weighted exercise price of $0.42). Immediately prior to the Effective Time, Target's authorized capital stock shall also include 3,330,791 shares of preferred stock Preferred Stock, $.10 par value per share (the “"Target Preferred Stock”, and along with the Target Common Stock, the “Target Capital Stock”"), 2,000,000 shares (i) 1,000,000 of which are shall be designated as Series 1 A Convertible Preferred Stock ("Target Series A Preferred Stock"), all of which are shall be issued and outstanding; 14,638,892 , (ii) 1,044,444 of which shall be designated Series B Convertible Preferred Stock ("Target Series B Preferred Stock"), 944,444 shares of which are shall be issued and outstanding, (iii) 216,845 of which shall be designated as Series C Convertible Preferred Stock ("Target Series C Preferred Stock"), all of which shall be issued and outstanding, (iv) 69,502 of which shall be designated Series D Convertible Preferred Stock ("Target Series D Preferred Stock"), all of which shall be issued and outstanding, and (v) 1,000,000 of which may be designated by the Board of Directors of the Corporation (the "Target Undesignated Preferred Stock"), which shall not be issued and outstanding. Furthermore, immediately prior to the Effective Time (i) 1,000,000 shares of Target Shares shall be reserved for issuance upon the conversion of the Target Series A Preferred Stock, 14,222,225 (ii) 1,044,444 Target Shares shall be reserved for issuance upon the conversion of which are issued and outstanding; 42,558,841 shares of which are designated as the Target Series B Preferred Stock, all (iii) 216,845 Target Shares shall be reserved for issuance upon the conversion of which are issued and outstanding; 28,301,887 shares of which are designated as the Target Series C Preferred Stock, all Stock and (iv) 69,502 Target Shares shall be reserved for issuance upon the conversion of which are issued and outstanding; and 170,000,000 shares of which are designated as Series D Preferred Stock, 168,924,005 of which are issued and outstanding (the “Target Series D Preferred Stock”). All Except as set forth in Section 3.4 of the Target Disclosure Schedule, each outstanding shares --------------------------------------------- share of Target Capital Stock are capital stock is duly authorized, validly issued, fully paid authorized and non-assessable and are free of any Encumbrances, and are not subject to preemptive rights or rights of first refusal created by statute, the Restated Articles or Bylaws of Target or any Contract to which Target is a party or by which it is bound. As of the date of this Agreement, (x) there are 21,252,194 shares of Target Common Stock reserved for issuance under Target’s 2011 Equity Incentive Plan (the “2011 Plan”), of which, as of the date of this Agreement, 11,057,854 shares were subject to outstanding options, (y) there are 10,194,340 shares that have been reserved for future option or stock grants and 9,000 shares have been issued upon the exercise of options issued pursuant to the 2011 Plan. As of the date of this Agreement, zero shares have been reserved for future option or stock grants and 13,367,264 shares have been issued upon the exercise of options issued pursuant to the Target’s 2001 Equity Incentive Plan (the “2001 Plan”). Zero shares have been reserved for future option or stock grants and 2,890,231 shares have been issued upon the exercise of options issued pursuant to the ImmenStar, Inc. 2006 Global Share Plan (together with the 2011 Plan and the 2001 Plan, the “Target Incentive Plans” and each a “Target Incentive Plan,” and the options outstanding thereunder, the “Target Options”). No other stock option plan or other equity based compensation plan or agreement is currently in effect, and there are no shares of Target Capital Stock reserved for issuance under any other equity based compensation plan or Contract. Target has delivered to Acquiror true and complete copies of each form of Contract evidencing each Target Option and each Contract evidencing a Target Option that materially deviates from the forms. Except for the rights created pursuant to this Agreement and the rights disclosed in the preceding sentences, there are no other options, warrants, restricted stock awards, phantom equity awards, calls, rights, commitments or agreements of any character to which Target is a party or by which it is bound, obligating Target to issue, deliver, sell, repurchase or redeem or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Target Capital Stock or any other security or ownership interest of Target or obligating Target to grant, extend, accelerate the vesting of, change the price of, or otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. All shares of Target Capital Stock issuable upon exercise of the options described in this Section 3.5 will be, if and when issued pursuant to the respective terms of such options, duly authorized, validly issued, fully paid and nonassessable, and has not been issued in violation of any pre emptive or similar rights. There Section 3.4 of the Target Disclosure Schedule sets forth for --------------------------------------------- each class and series of capital stock of Target outstanding, the following as of the Effective Time: (a) the number of shares of such class and series outstanding, (b) the liquidation preference for such class and series, including accumulated and unpaid dividends, and (c) the applicable Conversion Price (as defined in the Target Certificate) for such class or series. Other than as set forth in the first sentence hereof or in Section 3.4 to the Target Disclosure ------------------------------------ Schedule, there are no outstanding subscriptions, options, warrants, puts, -------- calls, agreements, understandings, claims or other commitments or rights of any type relating to the issuance, sale or transfer of any securities of Target, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of Target, and Target has no obligation of any kind to issue any additional securities or to pay for securities of Target or any predecessor. Except as set forth in Section 3.4 to the Target Disclosure Schedule, Target has not agreed to --------------------------------------------- register any securities under the Securities Act or under any state securities law or granted registration rights to any person or entity. Except as set forth in Section 3.4 of the Target Disclosure Schedule, there are no other Contracts contracts, --------------------------------------------- commitments or agreements relating to voting, purchase or sale of Target Capital Stock or any other securities or ownership interests capital stock of Target (Ai) between or among Target and any the holders of the Stockholders; Target's capital stock, and (Bii) to Target’s 's Knowledge, between or among any the holders of the Stockholders. All shares of outstanding Target Capital Stock and rights to acquire Target Capital Stock were issued in compliance with all applicable federal and state securities lawsTarget's capital stock.

Capitalization of Target. As of the date of this Agreement, the authorized capital stock of Target consists of (i) 370,000,000 34,504,347 shares of common stock (the “Target Common Stock”), of which 42,910,340 1,236,188 shares are issued and outstanding, and (ii) 257,499,620 23,704,347 shares of preferred stock (the “Target Preferred Stock”, and along with the Target Common Stock, the “Target Capital Stock”), 2,000,000 shares (i) 20,000,000 of which are designated as Target Series 1 A Preferred Stock, all of which are issued and outstanding; 14,638,892 shares , (ii) 200,000 of which are designated as Target Series A Preferred Stock, 14,222,225 of which are issued and outstanding; 42,558,841 shares of which are designated as Series B A-1 Preferred Stock, all of which are issued and outstanding; 28,301,887 shares outstanding and (iii) 3,504,347 of which are designated as Target Series C B Preferred Stock, all of which 3,260,869 shares are issued and outstanding; and 170,000,000 shares of which are designated as Series D Preferred Stock, 168,924,005 of which are issued and outstanding (the “Target Series D Preferred Stock”). All outstanding shares of Target Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are free of any Encumbrancesliens or encumbrances other than any liens or encumbrances created by or imposed upon the holders thereof, and are not subject to preemptive rights or rights of first refusal created by statute, the Restated Articles Target Certificate of Incorporation or Bylaws of Target Target, or any Contract agreement to which Target Target, is a party or by which it is bound. As of the date of this Agreement, (x) there There are 21,252,194 6,000,000 shares of Target Common Stock reserved for issuance under Target’s 2011 Equity the Target Incentive Plan (the “2011 Plan”), of which, as of the date of this Agreement, 11,057,854 shares which 2,996,168 were subject to outstanding optionsoptions under the Target Incentive Plan (collectively, (y) there are 10,194,340 the “Target Options”); 1,762,487 shares that have been reserved for future option or stock grants under the Target Incentive Plan and 9,000 80,960 shares have been issued upon the exercise of options issued pursuant to the 2011 Plan. As of the date of this Agreement, zero shares have been reserved for future option or stock grants and 13,367,264 shares have been issued upon the exercise of options issued pursuant to the Target’s 2001 Equity Incentive Plan (the “2001 Plan”). Zero shares have been reserved for future option or stock grants and 2,890,231 shares have been issued upon the exercise of options issued pursuant to the ImmenStar, Inc. 2006 Global Share Plan (together with the 2011 Plan and the 2001 Plan, the “Target Incentive Plans” and each a “Target Incentive Plan,” and . Except for the options outstanding thereunderTarget Incentive Plan, the “no other Target Options”). No other stock option plan or other equity based compensation plan or agreement is currently in effect, and there are no shares of Target Capital Stock Stock, reserved for issuance under any other equity based compensation plan or Contractplan. There are 43,478 shares of Target Series B Preferred Stock reserved for issuance upon the exercise of the Target Warrant. Target has delivered made available to Acquiror true and complete copies of each the Target Warrant, and has made available to Acquiror a form of Contract evidencing each award agreement for the Target Option and each Contract evidencing a Target Option that materially deviates from the formsOptions. Except for the rights created pursuant to this Agreement and the rights disclosed in the preceding sentences, there are no other options, warrants, restricted stock awards, phantom equity awards, calls, rights, commitments or agreements of any character to which Target is a party or by which it is bound, obligating Target to issue, deliver, sell, repurchase or redeem or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Target Capital Stock or any other security or ownership interest of Target or obligating Target to grant, extend, accelerate the vesting of, change the price of, or otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. All shares of Target Capital Common Stock issuable upon exercise of the options described in this Section 3.5 will be, if and when issued pursuant to the respective terms of such options, duly authorized, validly issued, fully paid and nonassessable. There Except as set forth in Section 3.5(a) of the Target Disclosure Schedule, there are no other Contracts contracts, commitments or agreements relating to voting, purchase or sale of Target Capital Stock or any other securities or ownership interests of Target (A) between or among Target and any of the Stockholdersits stockholders; and (B) to Target’s Knowledge, between or among any of the StockholdersTarget’s stockholders. All shares of outstanding Target Capital Stock and rights to acquire Target Capital Stock were issued in compliance with all applicable federal and state securities laws. All Target Preferred Stock converts to Target Common Stock as set forth in the Closing Payment Schedule.