Common use of Capitalization; Voting Rights Clause in Contracts

Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the Closing, will consist of (a) thirty-four million (34,000,000) shares of Common Stock, of which three million one hundred thirty-five thousand two hundred ninety-six (3,135,296) shares are issued and outstanding, and (b) twenty-six million seven hundred eighty-five thousand four hundred (26,785,400) shares of Preferred Stock, of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares are designated Series A Preferred Stock, of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding, and of which fourteen million ninety-seven thousand two hundred twenty-two (14,097,222) shares are designated Series B Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Certificate. The Conversion Shares have been duly and validly reserved for issuance. Except as may be granted pursuant to this Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist consists of (ai) thirty-four million (34,000,000) 168,174,200 shares of Common Stock, par value $0.001 per share, 13,333,976 shares of which three million one hundred thirty-five thousand two hundred ninety-six (3,135,296) shares are issued and outstanding, and (bii) twenty-six million seven hundred eighty-five thousand four hundred (26,785,400) 120,234,654 shares of Preferred Stock, par value $0.001 per share, 87,000,000 of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares are designated Series A Preferred Stock, of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding, and of which fourteen million ninety-seven thousand two hundred twenty-two (14,097,222) shares are designated Series B Preferred Stock, none 84,599,999 of which are issued and outstanding. All , 7,006,400 of which are designated Series A-1 Preferred Stock, 7,006,369 of which are issued and outstanding shares and 26,228,254 of which are designated Series A-2 Preferred Stock, 21,774,200 of which are issued and outstanding. (b) Under the Company's Common Stock and Preferred Stock ’s 2002 Equity Incentive Plan (the “Plan”), (i) 1,333,976 shares have been duly authorized and validly issuedissued pursuant to restricted stock purchase agreements and/or the exercise of outstanding options, (ii) options to purchase 20,968,367 shares have been granted and are fully paid and nonassessable currently outstanding, and (iii) were issued in compliance with all applicable state 6,111,362 shares of Common Stock remain available for future issuance to officers, directors, employees and federal laws concerning consultants of the issuance of securitiesCompany. The rightsCompany has not made any representations regarding equity incentives to any officer, preferencesemployee, privileges director or consultant that are inconsistent with the share amounts and restrictions of the Shares are as stated terms set forth in the Certificate. The Conversion Shares have been duly and validly Company’s board minutes. (c) Other than the shares reserved for issuance. Except issuance under the Plan, outstanding warrants to purchase 1,276,350 shares of Series A Preferred Stock, and except as may be granted pursuant to this AgreementAgreement and the Related Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. (d) All issued and outstanding shares of the Company’s capital stock (i) have been duly authorized and validly issued and are fully paid and nonassessable and (ii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. All issued and outstanding shares of the Company’s Common Stock are subject to a right of first refusal in favor of the Company upon transfer. (e) The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Charter. The Conversion Shares have been duly and validly reserved for issuance. When issued in compliance with the provisions of this Agreement and the Restated Charter, the Shares and the Conversion SharesShares will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances other than liens and encumbrances created by or imposed upon Purchaser; provided, however, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. (f) All options granted and Common Stock issued vest as follows: twenty-five percent (25%) of the shares vest one (1) year following the vesting commencement date, with the remaining seventy-five percent (75%) vesting in equal monthly installments over the next three (3) years (the “Normal Vesting Schedule”). No stock plan, stock purchase, stock option or other agreement or understanding between the Company and any holder of any equity securities or rights to purchase equity securities provides for acceleration or other changes in the vesting provisions or other terms of such agreement or understanding as the result of (i) termination of employment or consulting services (whether actual or constructive); (ii) any merger, consolidated sale of stock or assets, change in control or any other transaction(s) by the Company; or (iii) the occurrence of any other event or combination of events. (g) All outstanding shares of Common Stock and Preferred Stock, and all shares of Common Stock and Preferred Stock issuable upon the exercise or conversion of outstanding options, warrants or other exercisable or convertible securities are subject to a market standoff or “lockup” agreement of not less than 180 days following the Company’s initial public offering.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist consists of (ai) thirty-four million (34,000,000) 193,000,000 shares of Common Stock, 14,613,944 shares of which three million one hundred thirty-five thousand two hundred ninety-six (3,135,296) shares are issued and outstanding, and (bii) twenty-six million seven hundred eighty-five thousand four hundred (26,785,400) 123,205,808 shares of Preferred Stock, par value $0.001 per share, (A) 85,676,349 of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares are designated Series A Preferred Stock, 84,599,999 of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding, and ; (B) 7,006,369 of which fourteen million ninety-seven thousand two hundred twenty-two (14,097,222) shares are designated Series B A-1 Preferred Stock, 7,006,369 of which are issued and outstanding; (C) 25,828,254 of which are designated Series A-2 Preferred Stock, 25,828,254 of which are issued and outstanding; and (D) 4,694,836 of which are designated Series A-3 Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of . (b) Under the Company's Common Stock and Preferred Stock ’s 2002 Equity Incentive Plan (the “2002 Plan”), (i) 2,613,944 shares of Common Stock have been duly authorized and validly issuedissued pursuant to restricted stock purchase agreements and/or the exercise of Stock Options (as defined below) granted under the 2002 Plan, (ii) Stock Options to purchase 20,580,160 shares of Common Stock have been granted and are fully paid currently outstanding and nonassessable unexercised, and (iii) were no shares of Common Stock remain available for future issuance to officers, directors, employees and consultants of the Company. Under the Company’s 2010 Equity Incentive Plan (the “2010 Plan”), (i) no shares of Common Stock have been issued in compliance with all applicable state pursuant to restricted stock purchase agreements and/or the exercise of Stock Options granted under the 2010 Plan, (ii) Stock Options to purchase 6,143,468 shares of Common Stock have been granted and federal laws concerning are currently outstanding and unexercised, and (iii) 10,601,265 shares of Common Stock remain available for future issuance to officers, directors, employees and consultants of the issuance of securitiesCompany. The rightsCompany has not made any representations regarding equity incentives to any officer, preferencesemployee, privileges director or consultant that are inconsistent with the share amounts and restrictions terms set forth in minutes of meetings of the Shares are as stated in Board of Directors of the Certificate. The Conversion Shares have been duly and validly Company (the “Board”) or actions by written consent of the Board. (c) Other than the shares of Common Stock reserved for issuance. Except issuance under the 2002 Plan and the 2010 Plan, outstanding warrants to purchase 1,076,350 shares of Series A Preferred Stock, and except as may be granted pursuant to this AgreementAgreement and the Related Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. (d) All issued and outstanding shares of the Company’s capital stock (i) have been duly authorized and validly issued and are fully paid and nonassessable and (ii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. (e) The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Charter. The Conversion Shares have been duly and validly reserved for issuance. When issued in compliance with the provisions of this Agreement, including the Purchaser’s obligation to pay the purchase price for the Shares pursuant to Section 2.2, and the Restated Charter, the Shares and the Conversion SharesShares will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances other than liens and encumbrances created by or imposed upon Purchaser; provided, however, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. (f) Subject to the terms and conditions of the 2002 Plan, the 2010 Plan and the forms of stock option agreement thereunder, each option to purchase shares of Common Stock (each, a “Stock Option”) outstanding as of the Agreement Date vests as follows: (i) with respect to Stock Options granted to new employees in connection with their start of employment and to newly appointed independent members of the Board, twenty-five percent (25%) of the shares subject to such Stock Option vest one (1) year following the vesting commencement date, with the remaining seventy-five percent (75%) vesting in equal monthly installments over the next three (3) years, or (ii) with respect to Stock Options granted to employees not in connection with the start of their employment, the shares subject to such Stock Option vest in equal monthly installments over four (4) years following the vesting commencement date. Subject to the terms and conditions of the 2002 Plan, the 2010 Plan and the forms of stock option agreement thereunder, no stock plan, stock purchase, stock option or other agreement or understanding between the Company and any holder of any equity securities or rights to purchase equity securities of the Company provides for acceleration or other changes in the vesting provisions or other terms of such agreement or understanding as the result of (i) termination of employment or consulting services (whether actual or constructive); (ii) any merger, consolidated sale of stock or assets, change in control or any other transaction(s) by the Company; or (iii) the occurrence of any other event or combination of events. (g) All outstanding shares of Common Stock and Preferred Stock, and all shares of Common Stock and Preferred Stock issuable upon the exercise or conversion of outstanding options, warrants or other exercisable or convertible securities are subject to a market standoff or “lockup” agreement of not less than 180 days following the effective date of a registration statement of the Company filed under the Securities Act of 1933, as amended (the “Securities Act”).

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist of (a) thirty-four eighty million (34,000,00080,000,000) shares of Common Stock, of which three six million one hundred thirty-five thousand two seven hundred ninety-six seven thousand eight hundred fourteen (3,135,2966,797,814) shares are issued and outstanding, and (b) twenty-six thirty million seven hundred eighty-five thousand four hundred (26,785,40030,000,000) shares of Preferred Stock, of which twelve one million six seven hundred fifty-one thousand nine hundred eighty-eight thousand one hundred seventy-eight five (12,688,1781,751,985) shares are designated Series A Preferred Stock, of which twelve one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, of which four million nine hundred thirty-two thousand three hundred eight (4,932,308) shares are designated Series C Preferred Stock, of which four million nine hundred thirty-two thousand six three hundred seventy-six eight (12,533,6764,932,308) are issued and outstanding, and of which fourteen five million ninety-seven thousand two hundred twenty-two (14,097,2225,000,000) shares are designated Series B D Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Certificate. The Conversion Shares have been duly and validly reserved for issuance. As of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series D Conversion Price, as defined in the Certificate. Except as set forth on the Schedule of Exceptions and except as may be granted pursuant to this Agreement or the Investors' Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion SharesShares have been duly authorized and, when issued in compliance with the provisions of this Agreement and the Certificate, will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDED, HOWEVER, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time transfer is proposed. (b) The authorized capital stock of (i) Jato Operating Corp. consists of eleven hundred (1,100) shares of Common Stock, (ii) Jato Operating Two Corp. consists of one hundred (100) shares of Common Stock, and (iii) Jato Communications Corp. of Virginia consists of one hundred (100) shares of Common Stock, all of which shares are issued and outstanding and held of record by the Company.

Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the Closing, will consist of (a) thirtysixty-four five million (34,000,00065,000,000) shares of Common Stock, of which three five million five hundred eighty-nine thousand six hundred seventy-one hundred thirty-five thousand two hundred ninety-six (3,135,2965,589,671) shares are issued and outstanding, and (b) twentyforty-six eight million seven eight hundred eightythirty-five eight thousand four one hundred seventy-eight (26,785,40048,838,178) shares of Preferred Stock, of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares are designated Series A Preferred Stock, of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding, and of which fourteen million ninety-seven thousand two hundred twenty-two five million (14,097,22225,000,000) shares are designated Series B Preferred Stock, of which eighteen million eight hundred twenty-six thousand nine hundred fifty-nine (18,826,959) are issued and outstanding, of which ten million two-hundred fifty thousand (10,250,000) shares are designated Series C Preferred Stock, of which ten million twenty-two thousand six hundred thirty-four (10,022,634) are issued and outstanding, and of which nine hundred thousand (900,000) shares are designated Series D Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Certificate. The Conversion Shares have been duly and validly reserved for issuance. Except as may be granted pursuant to this Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Sharesgranted

Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the Closing, will consist of Forty Million (a) thirty-four million (34,000,00040,000,000) shares of Common StockStock (par value $.001 per share), Eight Million Four Hundred Twenty-Six Thousand Forty-Two (8,426,042) shares of which three million one hundred thirty-five thousand two hundred ninety-six (3,135,296) shares are issued and outstanding, and Eighteen Million (b) twenty-six million seven hundred eighty-five thousand four hundred (26,785,40018,000,000) shares of Preferred StockStock (par value $.001 per share), Five Million Two Hundred Thousand (5,200,000) of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares are designated Series A Preferred Stock, Five Million (5,000,000) of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding, and Four Million Four Hundred Thousand (4,400,000) of which fourteen million ninety-seven thousand two hundred twenty-two (14,097,222) shares are designated Series B Preferred Stock, none Three Million Six Hundred Sixty Thousand Nine Hundred Fourteen (3,660,914) of which are issued and outstanding, Four Million (4,000,000) of which are designated Series C Preferred Stock, Two Million Five Hundred Thirteen Thousand Five Hundred Thirteen (2,513,513) of which are issued and outstanding, Two Million Five Hundred Thousand (2,500,000) of which are designated Series D Preferred Stock, One Million Three Hundred Fifty-Eight Thousand Six Hundred Ninety-Five (1,358,695) of which are issued and outstanding, Three Hundred Thousand (300,000) of which are designated Series E Preferred Stock, Two Hundred Seventy Thousand Two Hundred Seventy (270,270) of which are issued and outstanding, Five Hundred Thousand (500,000) of which are designated Series F Preferred Stock, Four Hundred Five Thousand Four Hundred Five (405,405) of which are issued and outstanding, and One Million One Hundred Thousand (1,100,000) of which are designated Series G Preferred Stock, none of which are outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (ia) have been duly authorized and validly issued, (iib) are fully paid and nonassessable nonassessable, and (iiic) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Certificate. Each series of Preferred Stock is initially convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. Except as may be granted pursuant to this Agreementthe Related Agreements, stock awards and options to purchase shares of the Company's Common Stock granted pursuant to the Company's 1997 Equity Incentive Plan and 1999 Equity Incentive Plan, and outstanding warrants to purchase 81,522 shares of the Company's Common Stock, 52,083 shares of the Company's Series A Preferred Stock, 60,813 shares of the Company's Series B Preferred Stock, 324,325 shares of the Company's Series C Preferred Stock and 543,478 shares of the Company's Series D Preferred Stock, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Company has reserved 6,500,000 shares of Common Stock for issuance to employees, officers or directors of, or consultants or advisors to the Company pursuant to the Company's 1997 Equity Incentive Plan and 1999 Equity Incentive Plan, of which 2,067,288 remain available for future grant. When issued in compliance with the provisions of this Agreement and the Restated Certificate, the Shares and the Conversion SharesShares will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances; provided, however, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. Except as contained in the Related Agreements and the Restated Charter, or as set forth in the Schedule of Exceptions, the Company is not aware of any written agreement or other understandings relating to the voting of its securities.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist of (a) thirty-four eighty million (34,000,00080,000,000) shares of Common Stock, of which three six million one hundred thirty-five thousand two seven hundred ninety-six seven thousand eight hundred fourteen (3,135,2966,797,814) shares are issued and outstanding, and (b) twenty-six thirty million seven hundred eighty-five thousand four hundred (26,785,40030,000,000) shares of Preferred Stock, of which twelve one million six seven hundred fifty-one thousand nine hundred eighty-eight thousand one hundred seventy-eight five (12,688,1781,751,985) shares are designated Series A Preferred Stock, of which twelve one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, of which four million nine hundred thirty-two thousand three hundred eight (4,932,308) shares are designated Series C Preferred Stock, of which four million nine hundred thirty-two thousand six three hundred seventy-six eight (12,533,6764,932,308) are issued and outstanding, and of which fourteen five million ninety-seven thousand two hundred twenty-two (14,097,2225,000,000) shares are designated Series B D Preferred Stock, none of which one million seven hundred eighty-five thousand seven hundred fourteen (1,785,714) are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Certificate. The Conversion Shares have been duly and validly reserved for issuance. As of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series D Conversion Price, as defined in the Certificate. Except as set forth on the Schedule of Exceptions and except as may be granted pursuant to this Agreement or the Investors' Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion SharesShares have been duly authorized and, when issued in compliance with the provisions of this Agreement and the Certificate, will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDED, HOWEVER, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time transfer is proposed. (b) The authorized capital stock of (i) Jato Operating Corp. consists of eleven hundred (1,100) shares of Common Stock, (ii) Jato Operating Two Corp. consists of one hundred (100) shares of Common Stock, and (iii) Jato Communications Corp. of Virginia consists of one hundred (100) shares of Common Stock, all of which shares are issued and outstanding and held of record by the Company.

Capitalization; Voting Rights. The (a) As of the date hereof and before giving effect to the transactions contemplated by this Agreement, the authorized capital stock of the CompanyCompany consists of 950,000,000 shares, immediately prior to the Closing, will consist of (a) thirty-four million (34,000,000) which 500,000,000 are shares of Common Stock, par value $0.001 per share, 859,202 shares of which three million one hundred thirty-five thousand two hundred ninety-six (3,135,296) shares are issued and outstanding, outstanding and 1,267,399 shares of which are reserved for future issuance to employees pursuant to the Stock Option Plans (bas hereinafter defined) twenty-six million seven hundred eighty-five thousand four hundred (26,785,400) and 450,000,000 are shares of Preferred Stock, par value $0.001 per share; 8,750,000 shares of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares are designated Series A B Preferred Stock, 8,572,039 of which are issued and outstanding; 8,500,000 shares of which are designated Series C Preferred Stock, 6,270,527 of which are issued and outstanding; 3,000,000 of which are designated Series D Preferred Stock, of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) 2,868,538 are issued and outstanding, and ; 1,904,898 of which fourteen million ninety-seven thousand two hundred twenty-two (14,097,222) shares are designated Series B E Preferred Stock, none of which are issued and outstanding; 30,000,000 of which are designated Series F Preferred Stock, 23,596,492 of which are issued and outstanding; 329,000,000 of which are designated Series G Preferred Stock, of which 214,285,715 are issued and outstanding; 6,579,000 shares of which are designated Series H Preferred Stock, none of which are issued and outstanding; and 2,223,000 shares of which are designated Series I Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock capital stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and nonassessable, (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares Preferred Stock are as stated in the Certificate. (b) The Company has delivered to Purchasers a copy of the Company's 1998 Stock Option Plan (the "1998 PLAN") and 2000 Equity Participation Plan (the "2000 PLAN" and, together with the 1998 Plan, the "STOCK OPTION PLANS"). The Conversion Shares have been duly Schedule 3.3 sets forth a true and validly complete summary of all options issued under each Stock Option Plan, including the holder, issue date, exercise price, vesting status and expiration date of such option. Other than the 1,267,399 shares reserved for issuance. Except issuance under the Stock Option Plans, the options issued pursuant to the Stock Option Plans as set forth on Schedule 3.3 and 115,000 outstanding warrants (the "EXISTING WARRANTS") to purchase 253,047 shares of Common Stock pursuant to the Warrant Agreement, dated as of June 23, 1998, between the Company and Norwest Bank Minnesota, National Association, as Warrant Agent, and except as may be granted pursuant to this Agreement, the Series G Purchase Agreement and the Related Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its their securities. The Except as described in this Agreement, the Series G Purchase Agreement or set forth in Schedule 3.3, (x) there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any securities of the Company or any voting or equity securities or interests of any subsidiary of the Company, (y) there is no voting trust or other agreement or understanding to which the Company or any of its Subsidiaries is a party or is bound with respect to the voting of the capital stock or other voting securities of the Company or any of its Subsidiaries and (z) there are no other options, calls, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or any of its Subsidiaries to which the Company or any of its Subsidiaries is a party. (c) On each Closing Date, the Company's authorized capital stock will be as set forth in the Certificate, and the rights, preferences, privileges and restrictions of the Preferred Stock will be as stated in the Certificate. When issued in accordance with the provisions of this Agreement and the Certificate, the Shares and the Conversion SharesShares will be duly authorized, validly issued, fully paid and nonassessable and will be delivered free and clear of any Encumbrances and will have the rights, preferences, privileges and restrictions set forth in the Certificate; PROVIDED, HOWEVER, that such shares may be subject to restrictions on transfer under the Amended and Restated Purchasers Rights Agreement, dated as of March 26, 2001, by and among the Company and certain of its stockholders (the "PURCHASERS RIGHTS AGREEMENT") or under state or federal securities laws or as otherwise required by such laws at the time a transfer is proposed. (d) Schedule 3.3 sets forth as of the date hereof the name of each person or entity owning any of the Company's outstanding equity securities and the number and class of equity security owned by each such person or entity.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist consists of (ai) thirty-four ten million (34,000,00010,000,000) shares of Common Stock, of which three five million one hundred thirty-five thousand two hundred ninety-six (3,135,2965,100,000) shares of which are issued and outstanding, and (bii) twentytwo million five hundred ninety-six million seven two thousand five hundred eightyninety-five thousand four hundred three (26,785,4002,592,593) shares of Preferred Stock, two million five hundred ninety-two thousand five hundred ninety-three (2,592,593) shares of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares are designated Series A Preferred Stock, of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding, and of which fourteen million ninety-seven thousand two hundred twenty-two (14,097,222) shares are designated Series B Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of . (b) Under the Company's Common Stock and Preferred Stock 2000 Equity Incentive Plan (the "Plan"), (i) no shares have been duly authorized and validly issuedissued pursuant to restricted stock purchase agreements and/or the exercise of outstanding options, (ii) no options to purchase shares have been granted and are fully paid and nonassessable currently outstanding, and (iii) were issued in compliance with all applicable state one million six hundred seven thousand four hundred seven (1,607,407) shares of Common Stock remain available for future issuance to officers, directors, employees and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions consultants of the Shares are as stated in Company. (c) Other than (i) the Certificate. The Conversion Shares have been duly and validly shares reserved for issuance. Except issuance under the Plan, and (ii) warrants to purchase up to seven hundred thousand (700,000) shares of Common Stock pursuant to that certain Business Consultant and Management Agreement of even date herewith, and except as may be granted pursuant to this AgreementAgreement and the Related Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. (d) All issued and outstanding shares of the Company's Common Stock (i) have been duly authorized and validly issued and are fully paid and nonassessable, and (ii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. (e) The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Charter. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basis as of the date hereof. The Conversion Shares have been duly and validly reserved for issuance. When issued in compliance with the provisions of this Agreement and the Restated Charter, the Shares and the Conversion SharesShares will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances; provided, however, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. (f) No stock plan, stock purchase, stock option or other agreement or understanding between the Company and any holder of any equity securities or rights to purchase equity securities provides for acceleration or other changes in the vesting provisions or other terms of such agreement or understanding as the result of any merger, consolidated sale of stock or assets, change in control or any other transaction(s) by the Company.

Capitalization; Voting Rights. 1 The authorized capital stock of the Company, immediately prior to the ClosingInitial Closing after giving effect to the Restated Charter, will consist of (a) thirty-four million (34,000,000) [80,932,230] shares of Common Stock, par value $0.001 per share, 6,934,807 shares of which three million one hundred thirty-five thousand two hundred ninety-six (3,135,296) shares are issued and outstandingoutstanding and 9,677,915 shares of which are reserved for future issuance to employees pursuant to the Company’s 1998 Stock Option Plan, 2002 Stock Incentive Plan, 2002 California Stock Incentive Plan and 2005 Stock Incentive Plan (bcollectively, the “Stock Incentive Plans”) twenty-six million seven hundred eighty-five thousand four hundred (26,785,400) and [63,843,741] shares of Preferred Stock, par value $0.001 per share, 8,904,567 of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares are designated Series A Preferred Stock, all of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding 7,419,355 of which are designated Series B Preferred Stock, all of which are issued and outstanding, 6,401,523 of which are designated Series C Stock, all of which are issued and outstanding, 12,618,296 of which are designated as Series D Stock, all of which are issued and outstanding, 20,500,000 of which are designated as Series E Stock, 19,633,531 of which are issued and outstanding, 8,000,000 of which are designated as Series F Stock, 8,000,000 of which are issued and outstanding, and [•] of which fourteen million ninety-seven thousand two hundred twenty-two (14,097,222) shares are designated as Series B Preferred G Stock, none of which are issued and outstandingoutstanding (collectively, the “Preferred Stock”). All issued and outstanding shares of the Company's Common Stock and Preferred Stock ’s capital stock (ia) have been duly authorized and validly issued, (iib) are fully paid and nonassessable non-assessable, and (iiic) were issued offered, issued, sold and delivered in compliance with all applicable federal and state and federal laws concerning the issuance of securitiessecurities laws. The rights, preferences, privileges and restrictions of the Shares are as stated in the CertificateRestated Charter. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. Except . (a) Other than the 9,677,915 shares reserved for issuance under the Company’s Stock Incentive Plans, and except as may be granted pursuant to this Agreementprovided in the Restated Charter and the Investors’ Rights Agreement or as set forth in the Schedule of Exceptions, there are (i) no outstanding optionssubscriptions, warrants, options, convertible securities or other rights (contingent or otherwise) to purchase or acquire (including conversion or preemptive rights and rights of first refusal)) any shares of capital stock of the Company are authorized or outstanding, proxy (ii) the Company has no obligation (contingent or stockholder agreementsotherwise) to issue any subscription, warrant, option, convertible security or agreements other such right (including conversion or preemptive rights and rights of first refusal) or to issue or distribute to holders of any kind for shares of its capital stock any evidences of indebtedness or assets of the purchase or acquisition from Company, and (iii) the Company of has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of its securitiescapital stock or any interest therein or to pay any dividend or make any other distribution in respect thereof, and (iv) no stock appreciation, phantom stock or similar rights with respect to the Company are authorized or outstanding. The Except as contemplated by this Agreement, the Related Agreements or in the Schedule of Exceptions, there are no agreements or proxies, written or oral, between the Company and any holder of its capital stock, or, to the best knowledge of the Company, among any holders of its capital stock, relating to the acquisition, disposition or voting of the capital stock of the Company. (b) When issued in compliance with the provisions of this Agreement and the Restated Charter, the Shares and the Conversion SharesShares will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances (other than liens and encumbrances created by the Purchasers); provided, however, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. The sale of the Shares and the subsequent conversion of the Shares into Conversion Shares are not and will not be subject to any preemptive rights or rights of first refusal that have not been properly waived or complied with on or prior to the Initial Closing. (c) Attached as Exhibit G hereto is a true and complete list of the securityholders of the Company, showing the number of shares of Common Stock, Preferred Stock or other securities of the Company held by each securityholder as of the date of this Agreement and, in the case of options, warrants and other convertible securities, the exercise price thereof and the number and type of securities issuable thereunder.

Capitalization; Voting Rights. The authorized capital stock of the Company----------------------------- BC, immediately prior to the Closing, will consist of (a) thirty-four eight hundred fifty million (34,000,000850,000,000) shares of Common Stock, one hundred forty-two million nine hundred twenty-two thousand eight hundred ten (142,922,810) shares of which three million one hundred thirty-five thousand two hundred ninety-six (3,135,296) shares are issued and outstanding, and (b) twenty-six thirty million seven five hundred eighty-three thousand five thousand four hundred (26,785,40030,583,500) shares of Preferred Stockwhich are currently reserved for issuance pursuant to outstanding option agreements, of which twelve million six and seven hundred eighty-eight thousand four hundred sixty (788,460) shares of which will be reserved in the future for issuance to key employees, consultants and others affiliated with BC pursuant to stock grant, stock purchase and/or option plans or any other stock incentive program, arrangement or agreement approved by BC's Board of Directors and (b) one hundred seventy-eight fifty million (12,688,178150,000,000) shares of Preferred Stock (the "Preferred Stock") , 19,481,130 of which are designated Series A Convertible Participating Preferred Stock, all of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding, outstanding and 15,877,249 of which fourteen million ninety-seven thousand two hundred twenty-two (14,097,222) shares are designated Series B Convertible Participating Preferred Stock, none all of which are issued and outstanding. The authorized capital stock of Merger Sub consists of one thousand (1,000) shares of common stock, $0.0001 par value, all of which are issued and outstanding and held by BC. All issued and outstanding shares of the Company's Common Stock BC and Preferred Stock Merger Sub capital stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable nonassessable, (iii) are free of liens and encumbrances created by BC or Merger Sub and (iiiiv) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Certificate. The Conversion Shares have been duly and validly reserved for issuance. Except as may be granted pursuant to this AgreementAgreement and except as set forth above, there are no outstanding options, warrants, puts, calls, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company BC or Merger Sub of any of its securities. The Shares and their securities or other restrictions on the Conversion Sharesincidents of ownership or transfer created by statute, the charter documents of BC or Merger Sub or any agreement to which BC or Merger Sub is a party or by which they are bound.

Capitalization; Voting Rights. The (a) Immediately prior to the Closing, the authorized capital stock of the Company, immediately prior to the Closing, Company will consist of of: (ai) thirty-four million (34,000,000) 99,440,000 shares of Common Stock, 31,898,727 shares of which three million one hundred thirty-five thousand two hundred ninety-six are issued and outstanding and 11,992,426 shares of which are reserved for future issuance to employees pursuant to the Company's 1999 Stock Incentive Plan and (3,135,296ii) 34,715,228 shares of Preferred Stock, (A) 668,782 of which have been designated as Series A Preferred Stock, par value $0.01 per share, all of which are issued and outstanding, and (bB) twenty-six million seven hundred eighty-five thousand four hundred (26,785,400) shares 2,282,684 of which have been designated as Series B Preferred Stock, par value $0.01 per share, all of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares are designated Series A Preferred Stock, of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding, and (C) 7,273,762 of which fourteen million ninety-seven thousand two hundred twenty-two have been designated as Series C Preferred Stock, par value $0.01 per share, 6,576,246 of which are issued and outstanding, (14,097,222D) shares 8,000,000 of which have been designated as Series D Preferred Stock, par value $0.01 per share, 3,878,720 of which are issued and outstanding, (E) 12,000,000 of which have been designated as Series D-1 Preferred Stock, par value $0.01 per share, 6,083,488 of which are issued and outstanding, (F) 550,000 of which have been designated as Series D-2 Preferred Stock, par value $0.01 per share, 416,667 of which are issued and outstanding, (G) 2,000,000 of which have been designated as Series D-3 Preferred Stock, par value $0.01 per share, 792,775 of which are issued and outstanding and (H) 1,940,000 of which have been designated Series B Preferred D-4 Stock, none of which are issued and outstanding. . (b) All issued and outstanding shares of the Company's Common Stock and Preferred Stock (ia) have been duly authorized and validly issuedissued to the persons listed on Exhibit G hereto, (iib) are fully paid and nonassessable nonassessable, and (iiic) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. . (c) The rights, preferences, privileges and restrictions of the Shares and the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series D-1 Preferred Stock, Series D-2 Preferred Stock and Series D-3 Preferred Stock are as stated in the CertificateCertificate of Incorporation. The Conversion Shares have been duly and validly reserved for issuance. Except Other than as may be granted pursuant to this Agreementset forth in Section 3.3, there are no outstanding options, warrants, rights (including registration, conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Of the shares of Common Stock reserved for issuance under the Company's 1999 Stock Incentive Plan, (i) options to purchase 11,066,015 shares have been granted and are currently outstanding, and (ii) 926,411 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to such 1999 Stock Incentive Plan. When issued in compliance with the provisions of this Agreement and the Certificate of Incorporation, the Shares and the Conversion SharesShares will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances; provided, however, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed and pursuant to any agreements entered into in connection with this Agreement. (d) No stock plan, stock purchase, stock option or other agreement or understanding between the Company and any holder of any equity securities or rights to purchase equity securities provides for acceleration or other changes in the vesting provisions or other terms of such agreement or understanding as the result of any merger, consolidated sale of stock or assets, change in control or any other transaction(s) by the Company.

Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the Closing, will consist of (ax) thirty-four million (34,000,000) 20,000,000 shares of Common Stock, 2,974,644 shares of which three million one hundred thirty-five thousand two hundred ninety-six (3,135,296) shares are issued and outstandingoutstanding and 3,930,000 shares of which have been reserved for issuance to key employees and consultants pursuant to the Company's 1995 Stock Option Plan, as amended, and the Company's 1999 Equity Incentive Plan, of which 497,400 remain available for issuance under such plans and (by) twenty-six million seven hundred eighty-five thousand four hundred (26,785,400) 11,782,583 shares of Preferred Stock, 337,420 of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares are designated Series A Preferred Stock, 189,630 shares of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding, and 3,132,535 of which fourteen million ninety-seven thousand two hundred twenty-two (14,097,222) shares are designated Series B Preferred Stock, 3,118,785 shares of which are issued and outstanding, 2,954,784 of which are designated Series C Preferred Stock, 2,946,088 shares of which are issued and outstanding, 2,166,667 of which are designated Series D Preferred Stock, 2,166,667 shares of which are issued and outstanding and 3,191,177 of which are designated Series E Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (i) have been duly authorized and validly issuedissued to the persons listed on Exhibit E hereto, (ii) are fully paid and nonassessable nonassessable, and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the CertificateRestated Certificate and are valid, binding and enforceable in accordance with applicable law. The Conversion Shares have been duly and validly reserved for issuance. Except Other than as set forth on Exhibit E, and except as may be granted pursuant to this Agreementthe Related Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Sharesor

Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the Closing, will consist of (a) thirty-four of: twelve million (34,000,00012,000,000) shares of Common Stock, seven hundred thirty thousand nine hundred eighty-eight (730,988) shares of which three million one are issued and outstanding and nine hundred thirty-five three thousand two hundred ninetytwenty-six seven (3,135,296933,027) shares of which are issued reserved for future issuance to employees and outstanding, outside directors upon the exercise of options to purchase the Company's Common Stock; and nine million (b) twenty-six million seven hundred eighty-five thousand four hundred (26,785,4009,000,000) shares of Preferred Stock, of which twelve two million six seven hundred eighty-eight seven thousand one four hundred seventy-eight three (12,688,1782,707,403) shares are designated Series A Preferred Stock, of which twelve two million five hundred thirty-three thousand six hundred seventyeighty-six five thousand one hundred eighty-one (12,533,6762,685,181) shares are issued and outstanding, and of which fourteen million ninetyfive hundred seventy-nine thousand four hundred seven thousand two hundred twenty-two (14,097,222579,407) shares are designated Series B Preferred Stock, of which five hundred seventy-nine thousand four hundred seven (579,407) shares are issued and outstanding and of which five million (5,000,000) shares are designated Series C Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock, Series A Preferred Stock and Series B Preferred Stock (i) have been duly authorized and validly issuedissued to the persons listed on Exhibit F hereto, (ii) are fully paid and nonassessable nonassessable, and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the CertificateRestated Articles. The Conversion Shares have been duly and validly reserved for issuance. Except Other than as set forth on Exhibit F, and except (i) as may be granted pursuant to this the Investors' Rights Agreement and the Co-Sale Agreement, (ii) a warrant for the purchase of an aggregate of 22,222 shares of Series A Preferred Stock and (iii) a warrant for the purchase of an aggregate of 21,357 shares of Common Stock, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The When issued in compliance with the provisions of this Agreement and the Restated Articles, the Shares and the Conversion SharesShares will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances; provided, however, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed.

Capitalization; Voting Rights. The (a) As of the date hereof and before giving effect to the transactions contemplated by this Agreement, the authorized capital stock of the CompanyCompany consists of 950,000,000 shares, immediately prior to the Closing, will consist of (a) thirty-four million (34,000,000) which 500,000,000 are shares of Common Stock, par value $0.001 per share, 859,202 shares of which three million one hundred thirty-five thousand two hundred ninety-six (3,135,296) shares are issued and outstanding, outstanding and 1,267,399 shares of which are reserved for future issuance to employees pursuant to the Stock Option Plans (bas hereinafter defined) twenty-six million seven hundred eighty-five thousand four hundred (26,785,400) and 450,000,000 are shares of Preferred Stock, par value $0.001 per share; 8,750,000 shares of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares are designated Series A Preferred Stock, of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding, and of which fourteen million ninety-seven thousand two hundred twenty-two (14,097,222) shares are designated Series B Preferred Stock, 7,881,248 of which are issued and outstanding; 8,500,000 shares of which are designated Series C Preferred Stock, 6,270,527 of which are issued and outstanding; 3,000,000 of which are designated Series D Preferred Stock, of which 2,374,436 are issued and outstanding; 1,904,898 of which are designated Series E Preferred Stock, none of which are issued and outstanding; 30,000,000 of which are designated Series F Preferred Stock, 23,596,492 of which are issued and outstanding; 329,000,000 of which are designated Series G Preferred Stock, of which 223,638,432 are issued and outstanding; 6,579,000 shares of which are designated Series H Preferred Stock, 690,791 of which are issued and outstanding; and 2,223,000 shares of which are designated Series I Preferred Stock, 494,102 of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock capital stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and nonassessable, (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares Preferred Stock are as stated in the Certificate. (b) The Company has delivered to Purchasers a copy of the Company's 1998 Stock Option Plan (the "1998 PLAN") and 2000 Equity Participation Plan (the "2000 PLAN" and, together with the 1998 Plan, the "STOCK OPTION PLANS"). The Conversion Shares have been duly Schedule 3.3 sets forth a true and validly complete summary of all options issued under each Stock Option Plan, including the holder, issue date, exercise price, vesting status and expiration date of such option. Other than the 1,267,399 shares reserved for issuance. Except issuance under the Stock Option Plans, the options issued pursuant to the Stock Option Plans as set forth on Schedule 3.3 and 115,000 outstanding warrants (the "EXISTING WARRANTS") to purchase 253,047 shares of Common Stock pursuant to the Warrant Agreement, dated as of June 23, 1998, between the Company and Norwest Bank Minnesota, National Association, as Warrant Agent, and except as may be granted pursuant to this Agreement, the Series G Purchase Agreement and the Related Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its their securities. The Except as described in this Agreement, the Series G Purchase Agreement or set forth in Schedule 3.3, (x) there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any securities of the Company or any voting or equity securities or interests of any subsidiary of the Company, (y) there is no voting trust or other agreement or understanding to which the Company or any of its Subsidiaries is a party or is bound with respect to the voting of the capital stock or other voting securities of the Company or any of its Subsidiaries and (z) there are no other options, calls, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or any of its Subsidiaries to which the Company or any of its Subsidiaries is a party. (c) On each Closing Date, the Company's authorized capital stock will be as set forth in the Certificate, and the rights, preferences, privileges and restrictions of the Preferred Stock will be as stated in the Certificate. When issued in accordance with the provisions of this Agreement and the Certificate, the Shares and the Conversion SharesShares will be duly authorized, validly issued, fully paid and nonassessable and will be delivered free and clear of any Encumbrances and will have the rights, preferences, privileges and restrictions set forth in the Certificate; PROVIDED, HOWEVER, that such shares may be subject to restrictions on transfer under the Amended and Restated Purchasers Rights Agreement, dated as of March 26, 2001, by and among the Company and certain of its stockholders (the "PURCHASERS RIGHTS AGREEMENT") or under state or federal securities laws or as otherwise required by such laws at the time a transfer is proposed. (d) Schedule 3.3 sets forth as of the date hereof the name of each person or entity owning any of the Company's outstanding equity securities and the number and class of equity security owned by each such person or entity.

Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the Closing, will consist of thirty nine million, seven hundred ninety one thousand three hundred thirty two (a39,791,332) thirty-shares, twenty two million three hundred fifty eight thousand five hundred forty six (22,358,546) shares of which shall be Common Stock (the "Common Stock") and seventeen million four hundred thirty two thousand seven hundred eighty six (17,432,786) shares of which shall be Preferred Stock (the "Preferred Stock"). Of the Preferred Stock, six million seven hundred thousand (34,000,0006,700,000) shares are designated "Series A Preferred Stock" (the "Series A Preferred"), nine million thirty two thousand seven hundred eighty six (9,032,786) shares are designated "Series B Preferred Stock" (the "Series B Preferred"), five hundred thousand (500,000) shares are hereby designated "Series S-1 Preferred Stock" (the "Series S-1 Preferred") and four hundred thirty thousand one hundred eight (430,108) shares are designated "Series R Preferred Stock" (the "Series R Preferred"). On the date hereof, three million six hundred thirty three thousand sixteen (3,633,016) shares of Common StockStock are issued and outstanding, six million seven hundred thousand (6,700,000) shares of which three Series A Preferred Stock are issued and outstanding, nine million one thirty two thousand seven hundred thirty-five thousand two hundred ninety-eighty six (3,135,2969,032,786) shares of Series B Preferred Stock are issued and outstanding, and two hundred thousand (b) twenty-six million seven hundred eighty-five thousand four hundred (26,785,400200,000) shares of Series S-1 Preferred Stock, of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares Stock are designated Series A Preferred Stock, of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding, and of which fourteen million ninety-seven thousand two hundred twenty-two (14,097,222) shares are designated Series B Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock capital stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable nonassessable, and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the CertificateAmended and Restated Articles. The Conversion Shares have been duly and validly reserved for issuance. Except as may be granted pursuant Other than options to this Agreementacquire one million five hundred sixty three thousand, six hundred thirty (1,563,630) shares of Common Stock held by officers, employees and consultants of the Company, and First Amended Investor Rights Agreement between the Company, certain holders of its Common Stock, and the holders of its Series A Preferred Stock and Series B Preferred Stock, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The When issued in compliance with the provisions of this Agreement and the Amended and Restated Articles, the Shares and the Conversion SharesShares will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances; provided, however, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. Except as may be set forth in the Amended and Restated Articles, the Company has no obligation to repurchase any of its stock.

Capitalization; Voting Rights. The (a) Immediately prior to the Closing, the authorized capital stock of the Company, immediately prior to the Closing, Company will consist of of: (ai) thirty-four million (34,000,000) 70,000,000 shares of Common Stock, par value $0.01 per share, 19,996,804 shares of which three million one hundred thirty-five thousand two hundred ninety-six are issued and outstanding and 6,193,596 shares of which are reserved for future issuance to employees pursuant to the Company's 1999 Stock Incentive Plan and (3,135,296ii) 30,225,228 shares of Preferred Stock, (A) 668,782 of which have been designated as Series A Preferred Stock, par value $0.01 per share, all of which is issued and outstanding, (B) 2,282,684 of which have been designated as Series B Preferred Stock, par value $0.01 per share, all of which are issued and outstanding, and (bC) twenty-six million seven hundred eighty-five thousand four hundred (26,785,400) shares 7,273,762 of which have been designated as Series C Preferred Stock, par value $0.01 per share, 6,576,246 of which twelve million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178) shares are designated Series A Preferred Stock, of which twelve million five hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued and outstanding, and (D) 8,000,000 of which fourteen million ninety-seven thousand two hundred twenty-two have been designated as Series D Preferred Stock, par value $0.01 per share, 6,533,122 of which are issued and outstanding and (14,097,222E) shares are 12,000,000 of which have been designated Series B Preferred D-1 Stock, par value $0.01 per share, none of which are issued and outstanding. . (b) All issued and outstanding shares of the Company's Common Stock and Preferred Stock (ia) have been duly authorized and validly issuedissued to the persons listed on Exhibit G hereto, (iib) are fully paid and nonassessable nonassessable, and (iiic) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. . (c) The rights, preferences, privileges and restrictions of the Shares are as stated in the CertificateCertificate of Incorporation. The Series C Stock, Series D Stock and Series D-1 Stock are initially convertible into Common Stock on a one-for-one basis subject to Adjustment. The Series A and Series B Stock are convertible into Common Stock on a two-for-one basis subject to Adjustment (d) The Conversion Shares have been duly and validly reserved for issuance. Except Other than as may be granted pursuant to this Agreementset forth in Section 3.3, there are no outstanding options, warrants, rights (including registration, conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Of the shares of Common Stock reserved for issuance under the Company's 1999 Stock Incentive Plan, (i) options to purchase 5,884,796 shares have been granted and are currently outstanding, and (ii) 308,800 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to such 1999 Stock Incentive Plan. When issued in compliance with the provisions of this Agreement, the Certificate of Incorporation, the Shares and the Conversion SharesShares will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances; provided, however, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed and pursuant to any agreements entered into in connection with this Agreement. (e) No stock plan, stock purchase, stock option or other agreement or understanding between the Company and any holder of any equity securities or rights to purchase equity securities provides for acceleration or other changes in the vesting provisions or other terms of such agreement or understanding as the result of any merger, consolidated sale of stock or assets, change in control or any other transaction(s) by the Company.