Common use of Capitalization of the Company and its Subsidiaries Clause in Contracts

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of (i) 100,000,000 shares of preferred stock, $0.01 par value per share, 1,000,000 shares of which are designated Series A Junior Participating Preferred (“Series A Preferred Stock”), none of which are issued and outstanding, and 99,000,000 shares of which are blank check preferred stock without designation, none of which are issued and outstanding; and (ii) 100,000,000 shares of common stock, $0.01 par value per share, 33,333,333 shares of which are designated as Class A Common Stock, 11,418,499 of which are issued and outstanding as of April 8,2002, and 66,666,667 shares of which are designated as Class B Common Stock, 21,075,263 of which are issued and outstanding as of April 8, 2002. All of theoutstanding shares of Company Common Stock have been validly issued and are fully paid, nonassessable and free of preemptive rights. As of April 8, 2002, 56,680 shares of Class A Common Stock and 184,643 shares of Class B Common Stockwere reserved for issuance pursuant to outstanding Company Stock Options. Exceptas set forth above or as set forth in Section 3.2 of the Company DisclosureSchedule, as of the date hereof, there were outstanding (i) no shares of capital stock or other voting securities of the Company, (ii) no securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) no options or other rights to acquire from the Company and, no obligations of the Company to issue any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company and (iv) no equity equivalent interests in theownership or earnings of the Company or its subsidiaries (collectively “Company Securities”). Section 3.2 of the Company Disclosure Schedule identifies, as ofApril 8, 2002, the holder of each outstanding Company Stock Option issued pursuant to the Stock Option Plan, the number of shares of Company Common Stock issuable upon the exercise of each Company Stock Option and the exercise price and expiration date thereof and except as set forth in Section 3.2 of theCompany Disclosure Schedule no options currently outstanding have been grantedother than pursuant to the Stock Option Plan. As of the date hereof, except asset forth in Section 3.2 of the Company Disclosure Schedule, there are nooutstanding obligations of the Company or its subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. Except as set forth in Section 3.2of the Company Disclosure Schedule, there are no stockholder agreements, votingtrusts or other agreements or understandings to which the Company is a party orby which it is bound relating to the voting or registration of any shares ofcapital stock of the Company. Since April 8, 2002, there have been no issuancesof the Company’s capital stock other than issuances pursuant to outstandingCompany Stock Options.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of (i) 100,000,000 1,500,000,000 shares of Common Stock and 50,000,000 shares of preferred stock, $0.01 par value per share$0.001, 1,000,000 shares of which are designated Series A Junior Participating Preferred the Company (the “Series A Preferred Stock”), none of which are issued and outstanding, and 99,000,000 shares of which are blank check preferred stock without designation, none of which are issued and outstanding; and (ii) 100,000,000 shares of common stock, $0.01 par value per share, 33,333,333 shares of which are designated as Class A Common Stock, 11,418,499 of which are issued and outstanding as of April 8,2002, and 66,666,667 shares of which are designated as Class B Common Stock, 21,075,263 of which are issued and outstanding as of April 8, 2002. All of theoutstanding shares of Company Common Stock have been validly issued and are fully paid, nonassessable and free of preemptive rights. As of April 8, 2002, 56,680 shares of Class A Common Stock and 184,643 shares of Class B Common Stockwere reserved for issuance pursuant to outstanding Company Stock Options. Exceptas set forth above or as set forth in Section 3.2 of the Company DisclosureSchedule, as of the date hereof, there were outstanding (i) no shares of capital stock or other voting securities of the Company, (ii) no securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) no options or other rights to acquire from the Company and, no obligations of the Company to issue any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company and (iv) no equity equivalent interests in theownership or earnings of the Company or its subsidiaries (collectively “Company Securities”). Section 3.2 of the Company Disclosure Schedule identifies, as ofApril 8, 2002, the holder of each outstanding Company Stock Option issued pursuant to the Stock Option Plan, the number of shares of Company Common Stock issuable upon the exercise of each Company Stock Option and the exercise price and expiration date thereof and except as set forth in Section 3.2 of theCompany Disclosure Schedule no options currently outstanding have been grantedother than pursuant to the Stock Option Plan. As of the date hereof, except asset (a) 7,000,000 shares of Series A Preferred Stock are issued and outstanding, 7,254,997 shares of Series E Preferred Stock are issued and outstanding and have no voting rights, (b) 24,027,924 shares of Common Stock are issued and outstanding, (c) 12,468,025 shares of Common Stock are reserved for or subject to issuance. Schedule 3.6 sets forth in Section 3.2 a true and correct list of all outstanding rights, options or warrants to purchase shares of any class or series of stock of the Company Disclosure Schedule(collectively, the “Company Options”) and a true and correct list of each of the Company’s stock option, incentive, purchase or other plans pursuant to which options or warrants to purchase stock of the Company may be issued (collectively, the “Existing Plans”). Except as set out on Schedule 3.6 and for (i) shares of Common Stock issuable pursuant to the exercise of outstanding Company Options, (ii) shares of Common Stock issuable upon conversion of the Series A Preferred Stock, or the Series E Preferred Stock, (iii) securities issuable upon conversion of the Convertible Promissory Note, dated May 10, 2012, (the “XxXxxxx Note”), there are nooutstanding obligations no shares of Common Stock or any other equity security of the Company issuable upon conversion or exchange of any security of the Company or any of its subsidiaries Subsidiaries nor any rights, options or warrants outstanding or other agreements to repurchaseacquire shares of stock of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is contractually obligated to issue any shares of stock or to purchase, redeem or otherwise acquire any Company Securitiesof its outstanding shares of stock. Except as set forth in Section 3.2of Neither the Company Disclosure Schedulenor any of its Subsidiaries has created any “phantom stock,” stock appreciation rights or other similar rights the value of which is related to or based upon the price or value of the Common Stock. Neither the Company nor any of its Subsidiaries has outstanding debt or debt instruments providing for voting rights with respect to the Company or such Subsidiary to the holders thereof. Other than pursuant to the Investor Rights Agreement, there are no stockholder agreements, votingtrusts of the Company or any of its Subsidiaries or other agreements Person is entitled to any preemptive or understandings similar rights to which the Company is a party orby which it is bound relating to the voting or registration subscribe for shares of any shares ofcapital stock of the CompanyCompany or any of its Subsidiaries. Since April 8All of the issued and outstanding shares of Common Stock and Preferred Stock are duly authorized, 2002validly issued, there have been no issuancesof the Company’s capital stock other fully paid, and nonassessable. Other than issuances pursuant to outstandingCompany Stock Optionsthe Employment Agreements between the Company and XxXxxxx and Song, respectively, neither the Company nor any of its Subsidiaries has granted to any Person the right to demand or request that the Company or such Subsidiary effect a registration under the Securities Act of any securities held by such Person or to include any securities of such Person in any such registration by the Company or such Subsidiary.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of: 40,000,000 shares of (i) 100,000,000 Company Common Stock and 20,000,000 shares of preferred stock, $0.01 par value $1.00 per shareshare (the "PREFERRED STOCK"). As of June 9, 1,000,000 1999, 14,276,682 shares of which are designated Series A Junior Participating Preferred (“Series A Preferred Stock”), none of which Company Common Stock are issued and outstanding, and 99,000,000 no shares of which the Preferred Stock are blank check preferred stock without designation, none of which are issued and outstanding; and (ii) 100,000,000 shares of common stock, $0.01 par value per share, 33,333,333 shares of which are designated as Class A Common Stock, 11,418,499 of which are issued and outstanding as of April 8,2002, and 66,666,667 shares of which are designated as Class B Common Stock, 21,075,263 of which are issued and outstanding as of April 8, 2002. All of theoutstanding shares of Company Common Stock the Shares have been validly issued issued, and are fully paid, nonassessable and free of preemptive rights. As of April 8June 9, 20021999, 56,680 shares a total of Class A Common Stock and 184,643 shares of Class B Common Stockwere 1,498,920 Shares are reserved for issuance pursuant to outstanding Stock Options under the Company Stock Plans, and no other Shares are subject to issuance pursuant to Stock Options. Exceptas Set forth in Section 3.2(a) of the Company Disclosure Schedules is a complete and accurate list of the Company Stock Plans and the number of Shares reserved for issuance pursuant to Stock Options outstanding as of June 9, 1999 under each such Company Stock Plan, and no other Shares are subject to issuance pursuant to such Company Stock Plans. Since June 9, 1999, no shares of the Company's capital stock have been issued other than pursuant to Stock Options set forth on the Stock Option List and, since June 9, 1999, no stock options have been granted. Except as set forth above or as set forth in Section 3.2 of and except for the Company DisclosureScheduleRights to, as of among other things, purchase Series A Participating Preferred Stock issued pursuant to the date hereofRights Agreement, there were are outstanding (i) no shares of capital stock or other voting securities of the Company, (ii) no securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) no options or other rights to acquire from the Company andor any of its Subsidiaries, and no obligations of the Company or any of its Subsidiaries to issue issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company Company, and (iv) no equity equivalent equivalents, interests in theownership the ownership or earnings of the Company or any of its subsidiaries Subsidiaries or other similar rights (collectively “Company Securities”collectively, "COMPANY SECURITIES"). Section 3.2 of the Company Disclosure Schedule identifies, as ofApril 8, 2002, the holder of each There are no outstanding Company Stock Option issued pursuant to the Stock Option Plan, the number of shares of Company Common Stock issuable upon the exercise of each Company Stock Option and the exercise price and expiration date thereof and except as set forth in Section 3.2 of theCompany Disclosure Schedule no options currently outstanding have been grantedother than pursuant to the Stock Option Plan. As of the date hereof, except asset forth in Section 3.2 of the Company Disclosure Schedule, there are nooutstanding obligations of the Company or any of its subsidiaries Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. Except as set forth in Section 3.2of the Company Disclosure Schedule, there are no stockholder agreements, votingtrusts or other agreements or understandings to which the Company is a party orby which it is bound relating to the voting or registration of any shares ofcapital stock of the Company. Since April 8, 2002, there have been no issuancesof the Company’s capital stock other than issuances pursuant to outstandingCompany Stock Options.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of of: (i) 100,000,000 shares of preferred stock, $0.01 par value per share, 1,000,000 shares of which are designated Series A Junior Participating Preferred (“Series A Preferred Stock”), none of which are issued and outstanding, and 99,000,000 shares of which are blank check preferred stock without designation, none of which are issued and outstanding; and (ii) 100,000,000 shares of common stock, $0.01 par value per share, 33,333,333 shares of which are designated as Class A Common Stock, 11,418,499 of which are issued and outstanding as of April 8,2002, and 66,666,667 shares of which are designated as Class B Common Stock, 21,075,263 of which are issued and outstanding as of April 8, 2002. All of theoutstanding 30,000,000 shares of Company Common Stock and (ii) 10,000,000 shares of Preferred Stock, par value $.01 per share, of which 2,500,000 shares are designated Series A Preferred Stock, par value $.01 per share ("Series A Preferred Stock"), and 850,000 shares are designated Series B Preferred Stock, par value $.01 per share ("Series B Preferred Stock"). As of the date hereof, there are issued and outstanding 3,647,822 shares of Company Common Stock, 2,468,194 shares of Series A Preferred Stock and 710,282 shares of Series B Preferred Stock, and there are no shares held in the Company's treasury. A true and complete list of record holders of the issued and outstanding Company Common Stock, Series A Preferred Stock and Series B Preferred Stock as of the date hereof is set forth in Section 3.2 of the Company Disclosure Schedule. As of and immediately prior to the Effective Time, all outstanding shares of Series A Preferred Stock will be converted, in accordance with their terms, into shares of Company Common Stock, and all outstanding shares of Series B Preferred Stock will be converted, in accordance with their terms, into shares of Company Common Stock. All of the issued and outstanding Shares have been validly issued issued, and are duly authorized, fully paid, nonassessable non-assessable and free of preemptive rights. As of April 8the date hereof, 2002, 56,680 2,364,858 shares of Class A Common Stock and 184,643 shares of Class B Common Stockwere are reserved for issuance pursuant to and issuable upon or otherwise deliverable in connection with the exercise of outstanding Company Stock OptionsOptions issued pursuant to the Company Option Plans. Exceptas set forth above or Since December 31, 1998, no shares of the Company's capital stock have been issued other than pursuant to Company Stock Options already in existence on such date. Except as set forth in Section 3.2 of the Company DisclosureScheduleabove, as of the date hereof, there were are no outstanding (i) no shares of capital stock or other voting securities of the Company, ; (ii) no securities of the Company or any of its subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company, ; (iii) no options or other rights to acquire from the Company andor any of its subsidiaries, and no obligations of the Company or any of its subsidiaries to issue issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company 7 15 Company; and (iv) no equity equivalent equivalents, interests in theownership the ownership or earnings of the Company or its subsidiaries other similar rights (collectively “including, stock appreciation rights) (collectively, "Company Securities”"). Section 3.2 of the Company Disclosure Schedule identifies, as ofApril 8, 2002, the holder of each There are no outstanding Company Stock Option issued pursuant to the Stock Option Plan, the number of shares of Company Common Stock issuable upon the exercise of each Company Stock Option and the exercise price and expiration date thereof and except as set forth in Section 3.2 of theCompany Disclosure Schedule no options currently outstanding have been grantedother than pursuant to the Stock Option Plan. As of the date hereof, except asset forth in Section 3.2 of the Company Disclosure Schedule, there are nooutstanding obligations of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. Except as set forth in Section 3.2of the Company Disclosure Schedule, there There are no stockholder agreements, votingtrusts voting trusts or other agreements or understandings to which the Company or any of its subsidiaries is a party orby or to which it is bound relating to the voting or registration of any shares ofcapital of capital stock of the Company. Since April 8, 2002, there have been no issuancesof the Company’s capital stock Company (other than issuances pursuant the Voting Agreement). Section 3.2 of the Company Disclosure Schedule sets forth true and complete information regarding the current exercise price, the date of grant and the number of Company Stock Options granted for each holder of Company Stock Options. Following the Effective Time and conversion of the Company Stock Options into options to outstandingCompany acquire shares of Parent Common Stock in accordance with Section 2.2, in accordance with the Company Option Plans, no holder of Company Stock Options will have any right to receive shares of common stock of the Surviving Corporation upon exercise of the Company Stock Options.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of of: (i) 100,000,000 200,000,000 shares of preferred stockCompany Common Stock, $0.01 par value per share, 1,000,000 shares of which are designated Series A Junior Participating Preferred (“Series A Preferred Stock”), none of which are issued and outstanding, and 99,000,000 shares of which are blank check preferred stock without designation, none of which are issued and outstanding; and (ii) 100,000,000 5,000,000 shares of common stockpreferred stock of the Company, $0.01 par value $.01 per share, 33,333,333 400,000 shares of which are designated as Class A Common Stock, 11,418,499 of which are issued and outstanding as of April 8,2002, and 66,666,667 shares of which are designated as Class B Common Company Preferred Stock. As of the date hereof, 21,075,263 of which are issued and outstanding as of April 8, 2002. All of theoutstanding (i) 64,333,205 shares of Company Common Stock were issued and outstanding and (ii) 50,000 shares of Company Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock and Company Preferred Stock have been validly issued issued, and are fully paid, nonassessable and free of preemptive rights. As of April 8the date hereof, 2002, 56,680 a total of (i) 4,937,802 shares of Class A Company Common Stock and 184,643 shares of Class B Common Stockwere were reserved for issuance pursuant to outstanding Stock Options and RSUs, and no other shares of Company Common Stock Optionsare subject to issuance pursuant to Stock Options or any other equity based awards, (ii) 3,873,108 shares of Company Common Stock were reserved for issuance upon the exercise of currently outstanding warrants issued under the warrant agreements listed in Section 4.2(a) of the Company Disclosure Schedule (the “Warrant Agreements”) and (iii) 32,664,256 shares of Company Common Stock were reserved for issuance upon the exercise of Co-Investment Rights. Exceptas set forth above or as set Set forth in Section 3.2 4.2(a) of the Company DisclosureSchedule, Disclosure Schedule is a complete and accurate list of (i) the Company Stock Plans and the number of shares of Company Common Stock reserved for issuance pursuant to Stock Options outstanding as of the date hereofhereof under each such Company Stock Plan, there were outstanding and no other shares of Company Common Stock are subject to issuance pursuant to such Company Stock Plans, (iii) all warrant agreements to acquire capital stock of the Company and the number of shares of Company Common Stock reserved for issuance pursuant to such warrant agreements, and no other shares of capital stock of the Company are subject to issuance pursuant to such warrant agreements and (iii) all Co-Investment Agreements to acquire capital stock of the Company and the number of shares of Company Common Stock reserved for issuance pursuant to such Co-Investment Agreements, and no other shares of capital stock of the Company are subject to issuance pursuant to such Co-Investment Agreements. Since January 19, 2005, no shares of capital stock of the Company have been issued other than pursuant to Stock Options set forth on the Award List, Warrant Agreements or Co-Investment Agreements existing as of date hereof, and since January 19, 2005, no Stock Options, Restricted Shares, Warrants or Co-Investment Rights have been granted. Except as set forth above or in Section 4.2(a) of the Company Disclosure Schedule, there are no outstanding (i) shares of capital stock (including Restricted Shares) or other voting securities of the Company, (ii) no securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) no options options, warrants or other rights to acquire from the Company andor any of its Subsidiaries, no or obligations of the Company or any of its Subsidiaries to issue or sell, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company and Company, or (iv) no equity equivalent equivalents, interests in theownership the ownership or earnings of the Company or its subsidiaries other similar rights (collectively collectively, “Company Securities”). Section 3.2 of the Company Disclosure Schedule identifiesOther than as contemplated by this Agreement, as ofApril 8, 2002, the holder of each outstanding Company Stock Option issued pursuant to the Stock Option Plan, the number of shares of Company Common Stock issuable upon the exercise of each Company Stock Option and the exercise price and expiration date thereof and except as Stockholders’ Agreement or employment agreements set forth in Section 3.2 of theCompany Disclosure Schedule no options currently outstanding have been grantedother than pursuant to the Stock Option Plan. As of the date hereof, except asset forth in Section 3.2 4.10(a) of the Company Disclosure Schedule, there are nooutstanding no outstanding obligations of the Company or any of its subsidiaries Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. Except as set forth in Section 3.2of the Company Disclosure Schedule, there are no stockholder agreements, votingtrusts or other agreements or understandings to which the Company is a party orby which it is bound relating to the voting or registration of any shares ofcapital stock of the Company. Since April 8, 2002, there have been no issuancesof the Company’s capital stock other than issuances pursuant to outstandingCompany Stock Options.