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

Capitalization of the Company and its Subsidiaries. The authorized stock of the Company consists of 1,500,000,000 shares of Common Stock and 50,000,000 shares of preferred stock, par value $0.001, of the Company (the “Preferred Stock”). As of the date hereof, (a) 7,000,000 shares of Series A Preferred Stock are issued and outstanding, 87,500 shares of Series C Preferred Stock are issued and outstanding and have no voting rights, and 2,285,714 shares of Series D Preferred Stock are issued and outstanding, (b) 15,794,763 shares of Common Stock are issued and outstanding, (c) 12,329,915 shares of Common Stock are reserved for or subject to issuance, excluding shares of Common Stock to be issued to Xxxxxxx Xxxxxx as set forth in Schedule 3.6. Schedule 3.6 sets forth 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 (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, the Series C Preferred Stock, or the Series D Preferred Stock, (iii) securities issuable upon conversion of the XxXxxxx Note, and (iv) securities issuable upon conversion of the Bridge Note, there are 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 nor any rights, options or warrants outstanding or other agreements to acquire 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 of its outstanding shares of stock other than shares of Series D Preferred Stock pursuant to its terms. Neither the Company nor 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, no stockholder of the Company or any of its Subsidiaries or other Person is entitled to any preemptive or similar rights to subscribe for shares of stock of the Company or any of its Subsidiaries. All of the issued and outstanding shares of Common Stock and Preferred Stock are duly authorized, validly issued, fully paid, and nonassessable. Other than pursuant to the 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. Immediately following the Closing and the Contemplated Transactions, the shares of Common Stock issuable upon conversion of the Series E Preferred Stock that will be issued to the Purchasers under this Agreement will represent, in the aggregate, no less than 38% of the outstanding capital stock of the Company on a Fully Diluted Basis, and the voting power of such issued shares of Series E Preferred Stock will represent, in the aggregate, no less than 45% of the total number of votes able to be cast on any matter by Voting Securities of the Company on a Fully Diluted Basis, excluding for purposes of the calculations referred to in this sentence, the shares of Common Stock, or options to purchase Common Stock, to be granted to Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxx as set forth in Schedule 3.6 and the shares of Common Stock issuable upon conversion of the Series C Preferred Stock.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of 1,500,000,000 of: (i) 30,000,000 shares of Company Common Stock and 50,000,000 (ii) 10,000,000 shares of preferred stockPreferred Stock, par value $0.001.01 per share, of the Company (the “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, (a) 7,000,000 there are issued and outstanding 3,647,822 shares of Company Common Stock, 2,468,194 shares of Series A Preferred Stock are issued and outstanding, 87,500 710,282 shares of Series C B Preferred Stock 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 have no voting rightsSeries 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, and 2,285,714 all outstanding shares of Series D A Preferred Stock are 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 outstandingoutstanding Shares have been validly issued, (b) 15,794,763 and are duly authorized, fully paid, non-assessable and free of preemptive rights. As of the date hereof, 2,364,858 shares of Common Stock are issued and outstanding, (c) 12,329,915 shares of Common Stock are reserved for issuance and issuable upon or subject otherwise deliverable in connection with the exercise of outstanding Company Stock Options issued pursuant to issuance, excluding shares of Common Stock to be issued to Xxxxxxx Xxxxxx as set forth in Schedule 3.6. Schedule 3.6 sets forth 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 (collectivelyOption Plans. Since December 31, the “Company Options”) and a true and correct list of each 1998, no shares of the Company’s 's capital stock option, incentive, purchase or have been issued other plans than pursuant to which options or warrants to purchase stock of the Company may be issued (collectively, the “Existing Plans”)Stock Options already in existence on such date. Except as set out on Schedule 3.6 and for forth above, as of the date hereof, there are no outstanding (i) shares of Common Stock issuable pursuant to capital stock or other voting securities of the exercise of outstanding Company Options, Company; (ii) shares of Common Stock issuable upon conversion of the Series A Preferred Stock, the Series C Preferred Stock, or the Series D Preferred Stock, (iii) securities issuable upon conversion of the XxXxxxx Note, and (iv) securities issuable upon conversion of the Bridge Note, there are 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 nor any rights, subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company; (iii) options or warrants outstanding or other agreements rights to acquire shares from the Company or any of stock its subsidiaries, and no obligations of the Company or any of its Subsidiaries. Neither subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the 7 15 Company; and (iv) equity equivalents, interests in the ownership or earnings of the Company nor any of its Subsidiaries is contractually obligated to issue any shares of stock or to purchase, redeem or otherwise acquire any of its outstanding shares of stock other than shares of Series D Preferred Stock pursuant to its terms. Neither the Company nor 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(including, stock appreciation rights) (collectively, "Company Securities"). Neither the Company nor any of its Subsidiaries has There are no 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, no stockholder obligations of the Company or any of its Subsidiaries subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. There are no stockholder agreements, voting trusts or other Person is entitled agreements to any preemptive or similar rights to subscribe for shares of stock of which the Company or any of its Subsidiaries. All subsidiaries is a party or to which it is bound relating to the voting of any shares of capital stock of the issued and outstanding shares Company (other than the Voting Agreement). Section 3.2 of Common Stock and Preferred Stock are duly authorized, validly issued, fully paid, and nonassessable. Other than pursuant to the Employment Agreements between the Company Disclosure Schedule sets forth true and XxXxxxx and Songcomplete information regarding the current exercise price, respectively, neither the Company nor any date 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. Immediately following the Closing grant and the Contemplated Transactions, number of Company Stock Options granted for each holder of Company Stock Options. Following the shares of Common Stock issuable upon Effective Time and conversion of the Series E Preferred Company Stock that will be issued Options into options to the Purchasers under this Agreement will representacquire shares of Parent Common Stock in accordance with Section 2.2, in accordance with the aggregateCompany Option Plans, no less than 38% 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. (b) All of the outstanding capital stock of the Company Company's subsidiaries is owned by the Company, directly or indirectly, free and clear of any Lien or any other limitation or restriction (including, any restriction on the right to vote or sell the same, except as may be provided as a Fully Diluted Basis, and the voting power matter of such issued shares of Series E Preferred Stock will represent, in the aggregate, Law). There are no less than 45% of the total number of votes able to be cast on any matter by Voting Securities securities of the Company on a Fully Diluted Basisor its subsidiaries convertible into or exchangeable for, excluding no options or other rights to acquire from the Company or its subsidiaries, and no other contract, or obligation (whether or not contingent) providing for purposes the issuance or sale, directly or indirectly of, any capital stock or other ownership interests in, or any other securities of, any subsidiary of the calculations referred Company. There are no outstanding contractual obligations of the Company or its subsidiaries to in this sentencerepurchase, the redeem, or otherwise acquire any outstanding shares of Common Stock, capital stock or options to purchase Common Stock, to be granted to Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxx as set forth other ownership interests in Schedule 3.6 and the shares of Common Stock issuable upon conversion any subsidiary of the Series C Preferred StockCompany.

Capitalization of the Company and its Subsidiaries. The authorized stock of the Company consists of 1,500,000,000 shares of Common Stock and 50,000,000 shares of preferred stock, par value $0.001, of the Company (the “Preferred Stock”). As of the date hereof, (a) 7,000,000 shares of Series A Preferred Stock are issued and outstanding, 87,500 7,254,997 shares of Series C E Preferred Stock are issued and outstanding and have no voting rights, and 2,285,714 shares of Series D Preferred Stock are issued and outstanding, (b) 15,794,763 24,027,924 shares of Common Stock are issued and outstanding, (c) 12,329,915 12,468,025 shares of Common Stock are reserved for or subject to issuance, excluding shares of Common Stock to be issued to Xxxxxxx Xxxxxx as set forth in Schedule 3.6. Schedule 3.6 sets forth 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 (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, the Series C Preferred Stock, or the Series D E Preferred Stock, (iii) securities issuable upon conversion of the Convertible Promissory Note, dated May 10, 2012, (the “XxXxxxx Note, and (iv) securities issuable upon conversion of the Bridge Note”), there are 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 nor any rights, options or warrants outstanding or other agreements to acquire 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 of its outstanding shares of stock other than shares of Series D Preferred Stock pursuant to its termsstock. Neither the Company nor 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, no stockholder of the Company or any of its Subsidiaries or other Person is entitled to any preemptive or similar rights to subscribe for shares of stock of the Company or any of its Subsidiaries. All of the issued and outstanding shares of Common Stock and Preferred Stock are duly authorized, validly issued, fully paid, and nonassessable. Other than pursuant to the 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. Immediately following the Closing and the Contemplated Transactions, the shares of Common Stock issuable upon conversion of the Series E Preferred Stock that will be issued to the Purchasers under this Agreement will represent, in the aggregate, no less than 38% of the outstanding capital stock of the Company on a Fully Diluted Basis, and the voting power of such issued shares of Series E Preferred Stock will represent, in the aggregate, no less than 45% of the total number of votes able to be cast on any matter by Voting Securities of the Company on a Fully Diluted Basis, excluding for purposes of the calculations referred to in this sentence, the shares of Common Stock, or options to purchase Common Stock, to be granted to Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxx as set forth in Schedule 3.6 and the shares of Common Stock issuable upon conversion of the Series C Preferred Stock.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of 1,500,000,000 of: (i) 200,000,000 shares of Company Common Stock Stock, and 50,000,000 (ii) 5,000,000 shares of preferred stockstock of the Company, par value $0.001.01 per share, 400,000 shares of the which are designated as shares of Company (the “Preferred Stock”). As of the date hereof, (ai) 7,000,000 64,333,205 shares of Series A Preferred Company Common Stock are issued and outstanding, 87,500 shares of Series C Preferred Stock are were issued and outstanding and have no voting rights, and 2,285,714 (ii) 50,000 shares of Series D Company Preferred Stock are were issued and outstanding, (b) 15,794,763 . All of the outstanding shares of Company Common Stock and Company Preferred Stock have been validly issued, and are fully paid, nonassessable and free of preemptive rights. As of the date hereof, a total of (i) 4,937,802 shares of Company Common Stock were reserved for issuance pursuant to outstanding Stock Options and RSUs, and no other shares of Company Common Stock are issued and outstandingsubject to issuance pursuant to Stock Options or any other equity based awards, (cii) 12,329,915 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. Set forth in Section 4.2(a) of the Company 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 hereof under each such Company Stock Plan, and no other shares of Company Common Stock are reserved for or subject to issuanceissuance pursuant to such Company Stock Plans, excluding shares of Common Stock (ii) all warrant agreements to be issued to Xxxxxxx Xxxxxx as set forth in Schedule 3.6. Schedule 3.6 sets forth a true and correct list of all outstanding rights, options or warrants to purchase shares of any class or series of acquire capital stock of the Company (collectively, and the “number of shares of Company Options”) and a true and correct list of each of the Company’s stock option, incentive, purchase or other plans Common Stock reserved for issuance pursuant to which options or warrants to purchase such warrant agreements, and no other shares of capital stock of the Company may be 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 (collectivelyother than pursuant to Stock Options set forth on the Award List, the “Existing Plans”)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 out on Schedule 3.6 and for forth above or in Section 4.2(a) of the Company Disclosure Schedule, there are no outstanding (i) shares of Common Stock issuable pursuant to capital stock (including Restricted Shares) or other voting securities of the exercise of outstanding Company OptionsCompany, (ii) shares of Common Stock issuable upon conversion of the Series A Preferred Stock, the Series C Preferred Stock, or the Series D Preferred Stock, (iii) securities issuable upon conversion of the XxXxxxx Note, and (iv) securities issuable upon conversion of the Bridge Note, there are 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 nor convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) options, warrants or other rights to acquire from the Company or any of its Subsidiaries, 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, or (iv) equity equivalents, interests in the ownership or earnings of the Company or other similar rights (collectively, "Company Securities"). Other than as contemplated by this Agreement, Stockholders' Agreement or employment agreements set forth in Section 4.10(a) of the Company Disclosure Schedule, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. (b) All of the outstanding capital stock of, or other ownership interests in, each Subsidiary of the Company is owned by the Company, directly or indirectly, free and clear of any Lien or any other limitation or restriction (including any restriction on the right to vote or sell the same, except as may be provided as a matter of law). All such shares have been validly issued, fully paid and nonassessable, and have been issued free of preemptive rights. There are no outstanding securities of the Company or any of its Subsidiaries convertible into or exchangeable for, no options or warrants other rights to acquire from the Company or any of its Subsidiaries, and no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of, any capital stock or other ownership interests in, or any other securities of, any Subsidiary of the Company. There are no outstanding equity equivalents, interests in the ownership or earnings or similar rights of any Subsidiary of the Company. There are no contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any Subsidiary of the Company, other than as contemplated by this Agreement and the Stockholders' Agreement. (c) No class of equity securities of the Company or any of its Subsidiaries is registered or required to be registered under the Exchange Act. No Subsidiary of the Company owns any capital stock in the Company. (d) Other than the Support Agreements and the Stockholders' Agreement, there are no voting trusts or other agreements or understandings to acquire shares which the Company or any of its Subsidiaries or to the Company's Knowledge, any of the Company's stockholders, is a party with respect to the voting of the capital 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 of its outstanding shares of stock other . (e) Other than shares of Series D Preferred Stock pursuant to its terms. Neither the Company nor 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 Indebtedness set forth in Section 4.2(e) of the Company or such Subsidiary to the holders thereof. Other than pursuant to the Investor Rights AgreementDisclosure Schedule, there is no stockholder Indebtedness of the Company or any of its Subsidiaries existing that contains any material restriction upon, or other Person is entitled imposes any material penalty with respect to any preemptive (i) the prepayment of such Indebtedness, (ii) the incurrence of Indebtedness by the Company or similar rights to subscribe for shares of stock its Subsidiaries, respectively, or (iii) the ability of the Company or any of its Subsidiaries. All of the issued and outstanding shares of Common Stock and Preferred Stock are duly authorized, validly issued, fully paid, and nonassessable. Other than pursuant to the Employment Agreements between the Company and XxXxxxx and Song, respectively, neither the Company nor any of its Subsidiaries has granted to grant any Person the right to demand Liens on its properties 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. Immediately following the Closing and the Contemplated Transactions, the shares of Common Stock issuable upon conversion of the Series E Preferred Stock that will be issued to the Purchasers under this Agreement will represent, in the aggregate, no less than 38% of the outstanding capital stock of the Company on a Fully Diluted Basis, and the voting power of such issued shares of Series E Preferred Stock will represent, in the aggregate, no less than 45% of the total number of votes able to be cast on any matter by Voting Securities of the Company on a Fully Diluted Basis, excluding for purposes of the calculations referred to in this sentence, the shares of Common Stock, or options to purchase Common Stock, to be granted to Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxx as set forth in Schedule 3.6 and the shares of Common Stock issuable upon conversion of the Series C Preferred Stockassets.