Common use of Capitalization; Options Clause in Contracts

Capitalization; Options. (a) The Company’s authorized capital stock consists solely of 80,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”). As of the close of business on June 16, 2008 (the “Measurement Date”), (i) 35,163,367 shares of Common Stock were issued and outstanding, of which 356,175 were Restricted Shares, and no shares of Preferred Stock were issued or outstanding and (ii) there were available for grant pursuant to the Equity Incentive Plans, Stock Options representing an aggregate of 1,013,617 shares of Common Stock. No Shares are held in the treasury of the Company or by any of its Subsidiaries. Since the Measurement Date, other than in connection with the issuance of Shares pursuant to the exercise of Stock Options outstanding as of the Measurement Date, there has been no change in the number of outstanding shares of capital stock of the Company or the number of outstanding Stock Options. Section 4.3(a) of the Company Disclosure Letter sets forth (w) for each Stock Option issued or outstanding pursuant to the Equity Incentive Plans or otherwise, the number of Stock Options, the number of shares of Common Stock issuable thereunder and the exercise or conversion price relating thereto, (x) for each Restricted Share issued or outstanding pursuant to the Equity Incentive Plans, the purchase price, (y) the aggregate number of Stock Options and Restricted Shares issued and outstanding as of the Measurement Date and the weighted average exercise price of the issued and outstanding Stock Options, and (z) the maximum number of shares of Common Stock that will be purchased pursuant to the ESPP after giving effect to Section 1.5(c) above. Except as set forth in this Section 4.3, there are no shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company or such securities or other rights (which term, for purposes of this Agreement, shall be deemed to include “phantom” stock or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights). Since the Measurement Date, there have been no issuances of any securities of the Company or any of its Subsidiaries that would have been in breach of Section 6.1(c) if made after the date of this Agreement. The Company has no rights plan, “poison-pill” or other similar agreement or arrangement or any anti-takeover provision in the Company Organizational Documents that is, or at the Effective Time shall be, applicable to the Company, the Common Stock, the Preferred Stock, the Merger or the other transactions contemplated by this Agreement.

Capitalization; Options. (a) The Company’s authorized capital stock consists solely of 80,000,000 2,000,000,000 shares of Common Stock Stock, par value $0.001 per share, and 5,000,000 20,000,000 shares of preferred stock, par value $0.0001 0.001 per share (the “Preferred Stock”). As of the close of business on June 16May 1, 2008 2009 (the “Measurement Date”), (i) 35,163,367 7,667,368 shares of Common Stock were issued and outstanding, of which 356,175 were Restricted Shares, outstanding and no shares of Preferred Stock were issued or outstanding and outstanding, (ii) there were available for grant issued and outstanding pursuant to the Equity Incentive Company’s stock award plans (the “Company Stock Award Plans”), Stock Options representing the right to acquire an aggregate of 1,013,617 109,389 shares of Common Stock for a per share exercise price that is less than the Merger Consideration and (iii) there were Warrants to purchase 250,764 shares of Common Stock. No Shares are held in the treasury of the Company or are owned by any of its the Company’s Subsidiaries. Since the Measurement Date, other than in connection with the issuance of Shares pursuant to the exercise of Stock Options or Warrants outstanding as of the Measurement Date, or the issuance of Stock Options pursuant to Company Benefit Plans as in existence as of the Measurement Date, there has been no change in the number of outstanding shares of capital stock of the Company or the number of outstanding Stock Options. Section 4.3(a) of the Company Disclosure Letter sets forth (w) for each Stock Option Option, issued or outstanding pursuant to the Equity Incentive Company Stock Award Plans or otherwise, the number of Stock Options, the number of shares of Common Stock issuable thereunder and the exercise or conversion price relating thereto, (x) for each Restricted Share issued or outstanding pursuant to the Equity Incentive Plans, the purchase price, (y) the aggregate number of Stock Options and Restricted Shares issued and outstanding as of the Measurement Date and the weighted average exercise price of the issued and outstanding Stock Options, and (z) the maximum number of shares of Common Stock that will be purchased pursuant to the ESPP after giving effect to Section 1.5(c) above. Except as set forth in this Section 4.3, there are no shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company or such securities or other rights (which term, for purposes of this Agreement, shall will be deemed to include “phantom” stock or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights). Since the Measurement Date, there have been no issuances of any securities of the Company or any of its Subsidiaries that would have been in breach of Section 6.1(c) if made after the date of this Agreement. The Company has no rights plan, “poison-pill” or other similar agreement or arrangement or any anti-takeover provision in the Company Organizational Documents that is, or at the Effective Time shall be, applicable to the Company, the Common Stock, the Preferred Stock, the Merger or the other transactions contemplated by this Agreement.

Capitalization; Options. (a) The Company’s 's authorized capital stock consists solely of 80,000,000 50,000,000 shares of Common Stock and 5,000,000 1,000,000 shares of preferred stock, par value $0.0001 per share Preferred Stock (the “"Preferred Stock”"), of which 2,500 shares of Preferred Stock are designated as Class A Preferred Stock and 500,000 shares of Preferred Stock are designated as Series B Convertible Preferred Stock. As of the close of business on June 16October 31, 2008 2006 (the “"Measurement Date”"), (i) 35,163,367 21,780,467 shares of Common Stock were issued and outstanding, of which 356,175 were Restricted Shares, and no . No shares of Preferred Stock were are issued or outstanding and (ii) there were available for grant pursuant to outstanding. As of the Equity Incentive PlansMeasurement Date, Stock Options representing an aggregate of 1,013,617 shares of Common Stock. No no Shares are held in the treasury of the Company or by any of its SubsidiariesCompany. Since the Measurement DateDate until the date of this Agreement, other than in connection with the issuance of Shares pursuant to the exercise of Stock Options outstanding as of the Measurement Date, there has been no change in the number of outstanding shares of capital stock of the Company or the number of outstanding Stock Options. As of the Measurement Date, Stock Options to purchase 2,653,390 shares of Common Stock were outstanding, with a weighted average exercise price of $9.26 per share. Section 4.3(a) of the Company Disclosure Letter sets forth (w) for a complete and correct list of all Stock Options that are outstanding as of the Measurement Date, the exercise price of each such Stock Option issued or outstanding pursuant Option, and with respect to the Equity Incentive Plans or otherwisePersons specified thereon, the number of Stock Options, the number of shares of Common Stock issuable thereunder Options held by each such Person and the exercise or conversion price relating thereto, (x) for each Restricted Share issued or outstanding pursuant to the Equity Incentive Plans, the purchase price, (y) the aggregate number of Stock Options and Restricted Shares issued and outstanding as of the Measurement Date and the weighted average exercise price of the issued and outstanding Stock Options, and (z) the maximum number of shares of Common Stock that will be purchased pursuant to the ESPP after giving effect to Section 1.5(c) aboveprices thereof. Except as set forth in this Section 4.3, there are no shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company or such securities or other rights (which term, for purposes of this Agreement, shall will be deemed to include “"phantom” " stock, stock appreciation rights, or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights). Since the Measurement DateDate through the date of this Agreement, there have been no issuances of any securities of the Company or any of its Subsidiaries that would have been in breach of Section 6.1(c) 6.1 if made after the date of this Agreement. The Company has no rights plan, “poison-pill” or other similar agreement or arrangement or any anti-takeover provision in the Company Organizational Documents that is, or at the Effective Time shall be, applicable to the Company, the Common Stock, the Preferred Stock, the Merger or the other transactions contemplated by this Agreement.

Capitalization; Options. (a) The Company’s authorized capital stock consists solely of 80,000,000 200,000,000 shares of Common Stock and 5,000,000 1,000,000 shares of preferred stock, par value $0.0001 .001 per share (the “Preferred Stock”). As of the close of business on June 16December 31, 2008 2006 (the “Measurement Date”), (i) 35,163,367 75,087,143 shares of Common Stock were issued and outstanding, of which 356,175 were Restricted Shares, outstanding and no shares of Preferred Stock were issued or outstanding and (ii) there outstanding. As of the Measurement Date, 25,776,359 Shares were available for grant pursuant to the Equity Incentive Plans, Stock Options representing an aggregate of 1,013,617 shares of Common Stock. No Shares are held in the treasury of the Company or Company. No Shares are held by any Subsidiary of its Subsidiariesthe Company. Since the Measurement DateDate until the date of this Agreement, other than in connection with the issuance of Shares pursuant to the exercise of Stock Options or the terms of Company RSUs outstanding as of the Measurement DateDate or pursuant to the Company ESPP, there has been no change in the number of outstanding shares of capital stock of the Company Shares or the number of outstanding Stock OptionsOptions or Company RSUs. Section 4.3(a) As of the Company Disclosure Letter sets forth (w) for each Measurement Date, 3,422,386 Stock Option issued or outstanding pursuant Options to the Equity Incentive Plans or otherwise, the number of Stock Options, the number of purchase shares of Common Stock issuable thereunder and the exercise or conversion price relating thereto, (x) for each Restricted Share issued or were outstanding pursuant to the Equity Incentive Plans, the purchase price, (y) the aggregate number of Stock Options and Restricted Shares issued and outstanding as of the Measurement Date and the weighted with an average exercise price of the issued and outstanding Stock Options$19.776, and (z) the maximum number of shares of Common Stock that will be purchased pursuant to the ESPP after giving effect to Section 1.5(c) abovethere were 2,138 Company RSUs outstanding. Except as set forth in this Section 4.33.3 and for the shares of Participating Preferred Stock which have been reserved for issuance upon the exercise of rights granted under the Company Rights Agreement and the 6,500,000 shares reserved for issuance pursuant to the Company ESPP, there are no shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company or such securities or other rights (which term, for purposes of this Agreement, shall will be deemed to include “phantom” stock or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights)) issued, reserved for issuance or outstanding. Since the Measurement DateDate through the date of this Agreement, there have been no issuances of any securities of the Company or any of its Subsidiaries that would have been in breach of Section 6.1(c) 5.1 if made after the date of this Agreement. The Company has no rights plan, “poison-pill” or other similar agreement or arrangement or any anti-takeover provision in the Company Organizational Documents that is, or at the Effective Time shall be, applicable to the Company, the Common Stock, the Preferred Stock, the Merger or the other transactions contemplated by this Agreement.

Capitalization; Options. (a) The Company’s authorized capital stock consists solely of 80,000,000 50,000,000 shares of Common Stock and 5,000,000 25,000,000 shares of preferred stock, par value $0.0001 1.00 per share (the “Preferred Stock”). As of the close of business on June 16January 10, 2008 (the “Measurement Date”), (i) 35,163,367 13,545,691 shares of Common Stock were issued and outstanding, of which 356,175 were Restricted Shares, outstanding and no shares of Preferred Stock were issued or outstanding and (ii) there were available for grant pursuant to the Equity Incentive Company Stock Award Plans, Stock Options representing an aggregate of 1,013,617 3,653,806 shares of Common Stock. No Shares are held in the treasury of the Company or by any of its the Company’s Subsidiaries. Since the Measurement Date, other than in connection with the issuance of Shares pursuant to the exercise of Stock Options outstanding as of the Measurement Date, there has been no change in the number of outstanding shares of capital stock of the Company or the number of outstanding Stock Options. As of the Measurement Date, 1,275,413 Stock Options to purchase 1,275,413 shares of Common Stock were outstanding, with a weighted average exercise price of $10.258 per share. Section 4.3(a) of the Company Disclosure Letter sets forth (w) for each Stock Option Option, issued or outstanding pursuant to the Equity Incentive Company Stock Award Plans or otherwise, the number of Stock Options, the number of shares of Common Stock issuable thereunder and the vesting schedules, the grant date, the expiration date and exercise or conversion price relating thereto, (x) for each Restricted Share issued or outstanding pursuant to the Equity Incentive Plans, the purchase price, (y) the aggregate number of Stock Options and Restricted Shares issued and outstanding as of the Measurement Date and the weighted average exercise price of the issued and outstanding Stock Options, and (z) the maximum number of shares of Common Stock that will be purchased pursuant to the ESPP after giving effect to Section 1.5(c) above. Except as set forth in this Section 4.3, there are no shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company or such securities or other rights (which term, for purposes of this Agreement, shall will be deemed to include “phantom” stock or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights). Since the Measurement Date, there have been no issuances of any securities of the Company or any of its Subsidiaries that would have been in breach of Section 6.1(c) if made after the date of this Agreement. The Company has no rights plan, “poison-pill” or other similar agreement or arrangement or any anti-takeover provision in the Company Organizational Documents that is, or at the Effective Time shall be, applicable to the Company, the Common Stock, the Preferred Stock, the Merger or the other transactions contemplated by this Agreement.

Capitalization; Options. (a) The a)The Company’s 's authorized capital stock shares consists solely of 80,000,000 shares of 60,000,000 Common Stock Shares and 5,000,000 shares of preferred stock, par value $0.0001 per share 1,000,000 Serial Preferred Shares (the “"Preferred Stock”Shares"). As of the close of business on June 16April 22, 2008 2007 (the “"Measurement Date”"), 35,178,646 Common Shares (iincluding shares subject to restrictions) 35,163,367 shares of Common Stock were issued and outstanding, of which 356,175 were Restricted Shares, outstanding and no shares of Preferred Stock Shares were issued or outstanding and (ii) there were available for grant pursuant to outstanding. As of the Equity Incentive PlansMeasurement Date, Stock Options representing an aggregate of 1,013,617 shares of Common Stock. No 2,834,811 Shares are held in the treasury of the Company or Company. No Shares are held by any Subsidiary of its Subsidiariesthe Company. Since the Measurement DateDate until the date of this Agreement, other than in connection with the issuance of Shares pursuant to the exercise of Stock Options outstanding as of the Measurement Date, there has been no change in the number of outstanding capital shares of capital stock of the Company or the number of outstanding Stock Options. As of the Measurement Date, 746,686 Stock Options to purchase 746,686 shares of Common Shares were outstanding, with a weighted average exercise price of $13.98 per share. Section 4.3(a) of the Company Disclosure Letter sets forth (w) for a complete and correct list of all Stock Options that are outstanding as of the Measurement Date, the exercise price of each such Stock Option issued or outstanding pursuant Option, and with respect to the Equity Incentive Plans or otherwisePersons specified thereon, the number of Stock Options, the number of shares of Common Stock issuable thereunder Options held by each such Person and the exercise or conversion price relating thereto, (xprices thereof and Section 4.3(a) for each Restricted Share issued or outstanding pursuant of the Company Disclosure Letter sets forth a complete and correct list of all Common Shares subject to the Equity Incentive Plans, the purchase price, (y) the aggregate number of Stock Options and Restricted Shares issued and restrictions that are outstanding as of the Measurement Date and with respect to the weighted average exercise price of Persons specified therein, the issued and outstanding Stock Options, and (z) the maximum number of shares of Common Stock that will be purchased pursuant Shares subject to the ESPP after giving effect to Section 1.5(c) aboverestrictions held by each such Person. Except as set forth in this Section 4.3, there are no capital shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for capital shares of capital stock of the Company or such securities or other rights (which term, for purposes of this Agreement, shall will be deemed to include “"phantom” " stock or other commitments that provide any right to receive value or benefits similar to such capital stockshares, securities or other rights). Since the Measurement DateDate through the date of this Agreement, there have been no issuances of any securities of the Company or any of its Subsidiaries that would have been in breach of Section 6.1(c) 6.1 if made after the date of this Agreement. The Company has no rights plan, “poison-pill” or other similar agreement or arrangement or any anti-takeover provision in the Company Organizational Documents that is, or at the Effective Time shall be, applicable to the Company, the Common Stock, the Preferred Stock, the Merger or the other transactions contemplated by this Agreement.

Capitalization; Options. (a) The Company’s 's authorized capital stock consists solely of 80,000,000 50,000,000 shares of Common Stock and 5,000,000 1,000,000 shares of preferred stock, par value $0.0001 per share Preferred Stock (the “"PREFERRED STOCK"), of which 2,500 shares of Preferred Stock are designated as Class A Preferred Stock and 500,000 shares of Preferred Stock are designated as Series B Convertible Preferred Stock”). As of the close of business on June 16October 31, 2008 2006 (the “Measurement Date”"MEASUREMENT DATE"), (i) 35,163,367 21,780,467 shares of Common Stock were issued and outstanding, of which 356,175 were Restricted Shares, and no . No shares of Preferred Stock were are issued or outstanding and (ii) there were available for grant pursuant to outstanding. As of the Equity Incentive PlansMeasurement Date, Stock Options representing an aggregate of 1,013,617 shares of Common Stock. No no Shares are held in the treasury of the Company or by any of its SubsidiariesCompany. Since the Measurement DateDate until the date of this Agreement, other than in connection with the issuance of Shares pursuant to the exercise of Stock Options outstanding as of the Measurement Date, there has been no change in the number of outstanding shares of capital stock of the Company or the number of outstanding Stock Options. As of the Measurement Date, Stock Options to purchase 2,653,390 shares of Common Stock were outstanding, with a weighted average exercise price of $9.26 per share. Section 4.3(a) of the Company Disclosure Letter sets forth (w) for a complete and correct list of all Stock Options that are outstanding as of the Measurement Date, the exercise price of each such Stock Option issued or outstanding pursuant Option, and with respect to the Equity Incentive Plans or otherwisePersons specified thereon, the number of Stock Options, the number of shares of Common Stock issuable thereunder Options held by each such Person and the exercise or conversion price relating thereto, (x) for each Restricted Share issued or outstanding pursuant to the Equity Incentive Plans, the purchase price, (y) the aggregate number of Stock Options and Restricted Shares issued and outstanding as of the Measurement Date and the weighted average exercise price of the issued and outstanding Stock Options, and (z) the maximum number of shares of Common Stock that will be purchased pursuant to the ESPP after giving effect to Section 1.5(c) aboveprices thereof. Except as set forth in this Section 4.3, there are no shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company or such securities or other rights (which term, for purposes of this Agreement, shall will be deemed to include “"phantom” " stock, stock appreciation rights, or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights). Since the Measurement DateDate through the date of this Agreement, there have been no issuances of any securities of the Company or any of its Subsidiaries that would have been in breach of Section 6.1(c) 6.1 if made after the date of this Agreement. The Company has no rights plan, “poison-pill” or other similar agreement or arrangement or any anti-takeover provision in the Company Organizational Documents that is, or at the Effective Time shall be, applicable to the Company, the Common Stock, the Preferred Stock, the Merger or the other transactions contemplated by this Agreement.