Common use of Company Capital Structure Clause in Contracts

Company Capital Structure. In the case of the Company, the authorized capital stock of the Company consists of 500,000,000 shares of Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). As of the Measurement Date, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no shares of Company Common Stock were held by the Company in its treasury and (iii) no shares of Company Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock have been duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights. The Company has no shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, as of the Measurement Date, there were (a) 3,913,542 shares of Company Common Stock reserved for future issuance under the Company Stock Plans, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.

Company Capital Structure. In the case of the Company, the The authorized capital stock of the Company consists of 500,000,000 50,000,000 shares of Common Stock, $0.01 par value per share (the "Company Common Stock"), of which there were an aggregate of 13,362,540 shares issued and outstanding as of the close of business on July 27, 1998 (with no shares held in treasury) plus shares of Company Common Stock to be issued due to the exercise of Options since July 14, 1998, and 50,000,000 2,000,000 shares of preferred stockPreferred Stock, $0.01 par value $0.01 per share (“Company Preferred Stock”)share, of which no shares are issued or outstanding. As All outstanding shares of the Measurement Date, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no shares of Company Common Stock were held by the Company in its treasury and (iii) no shares of Company Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock have been are duly authorized, validly issued, fully paid and nonassessable and free are not subject to preemptive rights created by statute, the Certificate of preemptive rightsIncorporation or Bylaws of the Company or any agreement or document to which the Company is a party or by which it is bound. The As of July 27, 1998, the Company has no reserved an aggregate of 4,552,000 shares of the Company Common Stock, net of exercises, for issuance pursuant to the Company Stock Plans and is obligated to issue 22,511 shares of Company Common Stock or Company Preferred pursuant to the Company's Employee Stock reserved for issuancePurchase Plan during the current purchase period. As of July 27, except that, as of the Measurement Date1998, there were Options outstanding to purchase an aggregate of 2,818,386 (a) 3,913,542 minus shares of Company Common Stock reserved for future issuance under issued upon exercise of Options since July 14, 1998) shares of the Company Common Stock pursuant to the Company Stock Plans. As of July 27, (b) 867,802 1998, there were Warrants outstanding to purchase an aggregate of 59,668 shares of the Company Common Stock. All shares of the Company Common Stock subject to outstanding Company Option Awardsissuance as aforesaid, upon issuance on the terms and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that conditions specified in the instruments pursuant to their terms may only which they are issuable, would be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable. The Company Schedule lists for each person who held Options or Warrants as of July 27, and each 1998, the name of the outstanding holder, the exercise price of such Option or Warrant, the number of shares as to which such Option or Warrant had vested at such date, the vesting schedule for such Option or Warrant, whether the exercisability of capital stock such Option or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record Warrant will be accelerated in any way by the Company or transactions contemplated by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights and the extent of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company such acceleration; provided that such schedule does not have outstanding any bondsreflect Option exercises since July 14, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter1998.

Company Capital Structure. In the case (a) As of the Companydate of the execution hereof, the authorized capital stock of the Company consists of 500,000,000 shares of Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). As of the Measurement Date, of: (i) 228,209,888 shares of Company Common Stock Preferred Stock. Twenty-five thousand (excluding treasury shares25,000) were issued and outstanding (including 119,422 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no shares of Company Common Stock were held by the Company in its treasury and (iii) no shares of Company Preferred Stock were of which ten thousand seven hundred and ninety-eight (10,798) shares have been designated as $500 Series A 8% Convertible Preferred Stock, par value $.001 per share (the "Series A Preferred Stock") of which eight thousand six hundred and thirty-eight (8,638) shares are issued and outstanding. All The Company Preferred Stock has been duly and validly issued and are fully paid, nonassessable, free of liens, encumbrances and restrictions on transfer other than restrictions under applicable state and federal securities laws and are free of liens, encumbrances and preemptive or similar rights contained in the Company's Certificate of Incorporation or Bylaws, or any agreement to which the Company is a party. The Company Preferred Stock has been issued in accordance with the registration or qualification provisions of the Securities Act of 1933, as amended (the "Securities Act") and any relevant state securities laws or pursuant to valid exemptions therefrom. Each share of Company Preferred Stock is convertible into two hundred (200) shares of Company Common Stock. (ii) Common Stock. Twenty-five million (25,000,000) shares of Company Common Stock, nine million four hundred and thirty-two thousand, four hundred and thirty-three (9,432,433) shares of which are issued and outstanding. The Company Common Stock has been duly and validly issued and are fully paid, nonassessable, free of liens, encumbrances and restrictions on transfer other than restrictions under applicable state and federal securities laws and are free of liens, encumbrances and preemptive or similar rights contained in the Certificate of Incorporation or Bylaws of the Company or in any agreement to which the Company is a party. The Company Common Stock has been issued in compliance with all provisions of the Securities Act and any relevant state securities laws or pursuant to valid exemptions therefrom. (iii) Parent understands and agrees that the Company may make certain changes to the capital structure at or prior to the Effective Time, including, but not limited to, effecting a stock split, stock dividend, reorganization or recapitalization, and may amend its Certificate of Incorporation and/or Bylaws in connection therewith; provided, that the Company will obtain the written consent of Parent to any such change, which consent will not be unreasonably withheld. (b) The Company Capital Stock is held by the persons with the domicile addresses and in the amounts set forth on Section 2.2(b) of the Company Disclosure Schedule. All outstanding shares of Company Common Capital Stock have been are duly authorized, validly issued, fully paid and nonassessable and free not subject to preemptive rights created by statute, the Certificate of preemptive rightsIncorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound. There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. The Company has no shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, as of the Measurement Date, there were (a) 3,913,542 shares of Company Common Stock reserved for future issuance under the Company Stock Plans, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash). Each of the outstanding shares of other capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each of the outstanding shares of capital stock issued or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matteroutstanding.

Company Capital Structure. In the case of the Company, the The authorized capital stock of the Company consists of 500,000,000 1,000,000,000 shares of Company Common Stock and 50,000,000 Stock, no par value, of which there were 128,282,596 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). As of the Measurement Date, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 as of June 12, 2000, and 10,000,000 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards)Preferred Stock, (ii) no par value, of which no shares of Company Common Stock were held by the Company in its treasury and (iii) no shares of Company Preferred Stock were are issued and or outstanding. All of the outstanding shares of Company Common Stock have been are duly authorized, validly issued, fully paid and nonassessable and free are not subject to preemptive rights created by statute, the Articles of preemptive rightsIncorporation or Bylaws of Company or any agreement or document to which Company is a party or by which it is bound. The As of June 12, 2000, Company has no had reserved an aggregate of 19,491,960 shares of Company Common Stock, net of exercises, for issuance to employees, consultants and non-employee directors pursuant to the Company Option Plans, under which options are outstanding for an aggregate of 9,995,378 shares and under which 9,496,582 shares are available for grant as of June 12, 2000. As of June 12, 2000, Company had reserved an aggregate of 685,582 shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, as issuance to holders of the Measurement Date, there were (a) 3,913,542 shares of warrants to purchase Company Common Stock reserved for future issuance under the ("Company Stock Plans, (b) 867,802 Warrants"). All shares of Company Common Stock subject to outstanding Company Option Awardsissuance as aforesaid, upon issuance on the terms and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that conditions specified in the instruments pursuant to their terms may only which they are issuable, would be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities Section 2.2 of the Company or its Subsidiaries, nor are there Schedule lists (i) each outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation option to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The acquire shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreementat June 12, 2000, the Company has not (A) issued any name of the holder of such option, the number of shares of Company Common Stock (other than upon subject to such option, the exercise price of such option, the number of shares as to which such option will have vested at such date, the vesting schedule for such option and whether the exercisability of such option will be accelerated in any way by the transactions contemplated by this Agreement or settlement for any other reason, and indicates the extent of acceleration, if any, and (ii) each outstanding Company Equity Awards outstanding as Warrant at June 12, 2000, the name of the Measurement Date) or (B) granted any holder of such Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations Warrant and the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matterexercise price therefor.

Company Capital Structure. In the case of the Company, the (a) The authorized capital stock of the Company consists of 500,000,000 100,000,000 shares of Company Common Stock and 50,000,000 3,000,000 shares of preferred stockPreferred Stock, $.01 par value $0.01 per share (“"Company Preferred Stock”"). As of the Measurement DateFebruary 12, 1998: (i) 228,209,888 15,519,944 shares of Company Common Stock (excluding treasury shares) were issued and outstanding outstanding, all of which are validly issued, fully paid and nonassessable; (including 119,422 ii) no shares of Company Common Preferred Stock subject to outstanding Company Restricted Stock Awards), were issued or outstanding; (iiiii) no shares of Company Common Stock were held by in the treasury of the Company in its treasury or by Subsidiaries of the Company; and (iiiiv) no 1,082,284 shares of Company Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock have been duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights. The Company has no shares of Company Common Stock or Company Preferred Stock were reserved for issuanceissuance under Company Stock Plans (including (A) 6,925 shares reserved for issuance under the 1982 Stock Option Plan, except that, as of the Measurement Date, there which 6,925 were subject to outstanding options and none of which were reserved for future option grants and (aB) 3,913,542 1,075,359 shares of Company Common Stock reserved for future issuance under the 1993 Equity Compensation Plan, as amended and restated, 755,114 of which were subject to outstanding options and 320,245 of which were reserved for future option grants. Since February 12, 1998, (i) no additional shares of capital stock have been reserved for issuance by the Company and (ii) the only issuances of shares of capital stock of the Company have been issuances of Company Common Stock upon the exercise of outstanding Company Stock Plans, Options (bas defined below) 867,802 listed in Item 3.3 of the Company Letter. All of the shares of Company Common Stock subject to outstanding Company Option Awardsissuance as specified above, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that upon issuance pursuant to their the terms may only and conditions specified in the instruments pursuant to which they are issuable, shall be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each . Except as provided in Item 3.3 of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this AgreementLetter, there are no outstanding subscriptionsobligations, optionscontingent or otherwise, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities repurchase, redeem or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued otherwise acquire any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matterStock.

Company Capital Structure. In the case of the Company, the (a) The authorized capital stock of the Company consists of 500,000,000 100,000,000 shares of Common Stock, $.001 par value, and 2,000,000 shares of Preferred Stock, $.001 par value, ("Company Preferred ----------------- Stock"). As of March 9, 2000 (without giving effect to the 100% stock ----- dividend to be distributed by Company on or about March 13, 2000), (i) 30,599,129 shares of Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). As of the Measurement Date, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 shares outstanding, all of Company Common Stock subject to outstanding Company Restricted Stock Awards)which are validly issued, fully paid and nonassessable and (ii) no shares of Company Common Stock were held in the treasury of Company or by its Subsidiaries. The Company Disclosure Schedule sets forth the number of shares of Company Common Stock reserved for future issuance pursuant to stock options granted and outstanding as of March 9, 2000 (without giving effect to the 100% stock dividend to be distributed by Company on or about March 13, 2000) and the plans under which such options were granted (collectively, the "Company Stock Plans"). No ------------------- material change in its treasury such capitalization has occurred between March 9, 2000 and (iii) no the date of this Agreement, except as a result of the exercise of stock options. As of the date of this Agreement, none of the shares of Company Preferred Stock were is issued and outstanding. All shares of Company Common Stock subject to issuance as specified above are duly authorized and, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be validly issued, fully paid and nonassessable. There are no obligations, contingent or otherwise, of Company or its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Company Common Stock or the capital stock of any Subsidiary or to loan funds to or make any material investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary or any other entity other than (i) guarantees of bank obligations of its Subsidiaries entered into in the ordinary course of business, and (ii) repurchase rights of Company under the Company Stock Plans, or under any stock option agreements pursuant to which options were granted under such plans. All of the outstanding shares of Company Common Stock have been capital stock of Company's Subsidiaries are duly authorized, validly issued, fully paid and nonassessable and free all such shares (other than directors' qualifying shares in the case of preemptive rights. The Company has no shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, as of the Measurement Date, there were (aforeign Subsidiaries) 3,913,542 shares of Company Common Stock reserved for future issuance under the Company Stock Plans, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is are owned beneficially and of record by the Company or by a direct or indirect wholly owned another Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Actall security interests, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreementliens, as of the date of this Agreementclaims, there are no outstanding subscriptionspledges, options, warrants, puts, call agreements, understandingslimitations on Company's voting rights, claims charges or other encumbrances of any nature other than security interests, liens, claims, pledges, agreements, commitments limitations, charges or rights other encumbrances that (A) relate to any taxes or other governmental charges or levies that are not yet due and payable, (B) relate to, were created, arose or exist in connection with any legal proceeding that is being contested in good faith, or (C) individually or in the aggregate would not materially interfere with the ability of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any each of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding conduct their business as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any mattercurrently conducted.

Company Capital Structure. In the case of the Company, the The authorized capital stock of the Company consists of 500,000,000 30,000,000 shares of Common Stock, $0.01 par value per share, of which there were 12,902,565 shares issued and outstanding as of the date of this Agreement and 5,000,000 shares of Preferred Stock, $0.01 par value per share, of which no shares are issued or outstanding as of the date of this Agreement. All outstanding shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). As of the Measurement Date, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no shares of Company Common Stock were held by the Company in its treasury and (iii) no shares of Company Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock have been are duly authorized, validly issued, fully paid and nonassessable and free are not subject to preemptive rights created by statute, the Certificate of preemptive rightsIncorporation or Bylaws of the Company or any agreement or document to which the Company is a party or by which it is bound. The As of the date of this Agreement, the Company has no had reserved an aggregate of 3,120,084 shares of the Company Common Stock or Company Preferred Stock reserved for issuanceissuance to employees, except thatconsultants and non-employee directors pursuant to the 1989 Plan, the 1992 Plan, the 1998 Plan and the Assumed Orchid Options, of which, as of the Measurement Datedate of this Agreement, there options for an aggregate of 831,867 shares had been exercised, options to purchase an aggregate of 1,317,244 shares were outstanding and an aggregate of 970,973 shares remained available for future grants. There are no shares reserved for issuance or issuable under the Company's Employee Stock Purchase Plan (a) 3,913,542 the "ESPP"). All shares of Company Common Stock reserved for future issuance under the Company Stock Plans, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject issuance pursuant to outstanding Company RSU Awardsstock options or purchase agreements entered into in connection with such plans, upon issuance on the terms and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that conditions specified in the instruments pursuant to their terms may only which they are issuable, would be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable. The Company Schedules list for each person who held restricted stock or options, and each the name of the outstanding holder of such shares or option, the exercise price of capital stock such option, the number of shares which will have vested at such date, the vesting schedule for such shares or other securities of each option and whether the lapsing of the Company’s Significant Subsidiaries is owned beneficially and 's repurchase rights or exercisability of record such option will be accelerated in any way by the Company or transactions contemplated by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there are no outstanding subscriptionsand indicate the extent of acceleration, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matterif any.

Company Capital Structure. In the case of the Company, the (a)The authorized capital stock of the Company consists of 500,000,000 (i) 45,000,000 shares of Company Common Stock and 50,000,000 Stock, of which 3,599,250 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). As of the Measurement Date, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were are issued and outstanding (including 119,422 as of the date hereof, no shares are held in the treasury of the Company Common Stock subject as of the date hereof, 7,896,590 shares are reserved for future issuance pursuant to outstanding Company Restricted Options as of the date hereof, and 28,290,357 shares are reserved for future issuance pursuant to the terms of the outstanding Company Preferred Stock Awards)as of the date hereof, and (ii) no shares of Company Common Stock were held by the Company in its treasury and (iii) no 27,259,137 shares of Company Preferred Stock were Stock, consisting entirely of (A) 12,793,070 shares of Series A Preferred Stock, of which 12,159,480 shares are issued and outstandingoutstanding as of the date hereof and 633,590 shares are reserved for future issuance pursuant to the terms of the Series A Warrants as of the date hereof, and (B) 15,457,016 shares of Series B Preferred Stock, of which 15,099,657 shares are issued and outstanding as of the date hereof and 357,359 shares are reserved for future issuance pursuant to the terms of the Series B Warrants as of the date hereof. Each share of Company Preferred Stock is convertible into one (1) share of Company Common Stock. All of the issued and outstanding shares of Company Common Capital Stock have been are duly authorized, validly issued, fully paid and nonassessable non‑assessable and free of are not subject to preemptive rights. The Company has no shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, Except as set forth on Section 3.2(d) of the Measurement DateCompany Disclosure Schedule, there were (a) 3,913,542 shares of Company Common Stock reserved for future issuance under the Company Stock Plans, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash). Each all of the issued and outstanding shares of capital stock or other equity securities of each subsidiary of the Company’s Subsidiaries is Company are duly authorized, validly issued, fully paid and nonassessable, non‑assessable and each are not subject to preemptive rights. As of the date hereof, the Company Capital Stock is held by the Persons with the domicile addresses and in the amounts set forth on Section 3.2(a) of the Company Disclosure Schedule, which further sets forth for each such Person the number, class and series of shares held by such Person, the percentage held by such Person relative to each class or series of shares such Person owns and the total issued and outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, Capital Stock as of the date hereof, and the number of this Agreementthe applicable stock certificates representing such shares. Except as set forth on Section 3.2(a) of the Company Disclosure Schedule (which provides an accurate and complete description of the vesting schedule and each repurchase and redemption right held by the Company to which any shares of Company Capital Stock are subject), there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims shares of Company Capital Stock or other agreements, commitments or rights any equity securities of any type relating to the issuance, sale, redemption or transfer by subsidiary of the Company of that constitute restricted stock or that are otherwise subject to a repurchase or redemption right. There are no declared or accrued but unpaid dividends with respect to any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiariessubsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of Except as set forth in this AgreementSection 3.2(a), the Company has not (A) no other capital stock authorized, issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matteroutstanding.

Company Capital Structure. In the case (a) As of the Companyday immediately preceding the Agreement Date, the authorized capital stock of the Company consists of 500,000,000 105,257,399 shares of Company Common Stock and 50,000,000 Stock, of which 9,545,530 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). As of the Measurement Date, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were are issued and outstanding (including 119,422 shares as of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no shares of Company Common Stock were held by the Company in its treasury Agreement Date and (iii) no 73,524,562 shares of Company Preferred Stock were Stock, of which 73,313,758 shares are issued and outstandingoutstanding as of the Agreement Date, consisting of 21,944,021 shares of Series A-1 Convertible Preferred Stock, 21,944,021 of which is outstanding as of the Agreement Date, 8,873,967 shares of Series A-2 Convertible Preferred Stock, 8,873,967 of which is outstanding as of the Agreement Date, 21,185,768 shares of Series B-1 Convertible Preferred Stock, 21,080,368 of which is outstanding as of the Agreement Date, 7,132,316 shares of Series B-2 Convertible Preferred Stock, 7,026,912 of which is outstanding as of the Agreement Date, and 14,388,490 shares of Series C Convertible Preferred Stock, 14,388,490 of which is outstanding as of the Agreement Date. All of the outstanding shares of Company Common Capital Stock have been are duly authorized, validly issued, fully paid and nonassessable non-assessable and free of not subject to any Liens (other than a Permitted Lien), outstanding subscriptions, preemptive rights. The Company has no shares , rights of Company Common Stock first refusal or Company Preferred Stock reserved for issuance“put” or “call” rights created by statute, except thatthe Charter Documents, as of the Measurement Date, there were (a) 3,913,542 shares of Company Common Stock reserved for future issuance under or any Contract to which the Company Stock Plans, (b) 867,802 shares is a party or by which it or any of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash)its assets is bound. Each None of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under Company Restricted Stock. All shares of Company Capital Stock and other Company Securities have been issued or repurchased (in the Exchange Actcase of shares that were outstanding and repurchased by the Company or any Stockholder) in material compliance with all Laws and all applicable Contracts, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation. Since There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock and the Measurement Date and through Company has never declared or paid any dividend or other distribution. Other than the date Company Capital Stock set forth in Section 3.5(b) of this Agreementthe Disclosure Schedule, the Company has not (A) no other capital stock authorized, issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matteroutstanding.

Company Capital Structure. In the case of the Company, the (a) The authorized capital stock of the Company consists of 500,000,000 22,000,000 shares of authorized Company Common Stock and 50,000,000 of which 5,338,736 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). As of the Measurement Date, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were are issued and outstanding (including 119,422 as of the date hereof, and 5,018,202 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no authorized Preferred Stock. 56,452 shares of Company Common the Company's Preferred Stock were are designated Class A Preferred Stock, of which 56,452 shares are issued and outstanding as of the date hereof. 50,000 shares of the Company's Preferred Stock are designated Class B Preferred Stock, of which 36,069 shares are issued and outstanding as of the date hereof. 43,000 shares of the Company's Preferred Stock are designated as Class C Preferred Stock, of which 11,420 shares are issued and outstanding as of the date hereof. 2,768,750 shares of the Company's Preferred Stock are designated Class D Preferred Stock, of which 2,768,750 shares are issued and outstanding as of the date hereof. 2,100,000 shares of the Company's Preferred Stock are designated Class E Preferred Stock, of which 2,100,000 shares are issued and outstanding on the date hereof. The Company's capital stock is held by the Company persons, with the domicile addresses, to the extent available, and in its treasury and (iiithe amounts set forth in Section 3.3(a) no shares of Company Preferred Stock were issued and outstanding. All of the Disclosure Schedule. Except as set forth in Section 3.3(a) of the Disclosure Schedule, all outstanding shares of Company Common Stock have been the Company's capital stock are duly authorized, validly issued, fully paid and nonassessable non-assessable and free of preemptive rights. The Company has no shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, as of the Measurement Date, there were (a) 3,913,542 shares of Company Common Stock reserved for future issuance under the Company Stock Plans, (b) 867,802 shares of Company Common Stock not subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record preemptive rights created by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Actstatute, the “blue sky” Laws Certificate of the various States Incorporation, Certificates of the United States Designation or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities Bylaws of the Company or its Subsidiariesany agreement to which the Company is a party or by which it is bound, nor and all such shares have been issued in compliance with all applicable federal and state securities laws. There are there outstanding any securities which are convertible into no declared or exchangeable for accrued unpaid dividends with respect to any shares of the Company's capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiariesstock. The shares of Company Common Stock There are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any no bonds, debentures, notes or other obligations indebtedness of the holders of which have Company having the right to vote (or convertible into into, or exercisable for exchangeable for, securities having the right to vote) with on any matter which stockholders of the Company may vote. Based on the representations made by each of the stockholders of the Company on at the time of their investment in the Company, to the Knowledge of the Company each of the Stockholders who shall receive any matterParent securities as a portion of the Total Merger Consideration in connection with the Merger is an "accredited investor" as defined under Regulation D promulgated pursuant to the Securities Act of 1933, as amended (the "1933 ACT").

Company Capital Structure. In the case As of the Companydate hereof, the authorized capital stock of the Company consists of 500,000,000 (i) 20,000,000 shares of Company Common Stock of which (A) 6,687,091 shares are issued and 50,000,000 outstanding, (B) 1,758,000 shares are reserved for issuance under Company Options approved from time to time by the Board under the Company's stock option plan, and (C) 2,000,000 shares are reserved for issuance upon conversion of the Company Preferred Stock; and (ii) 5,000,000 shares of preferred stock, par value $0.01 0.001 per share share, of the Company of which as of the date hereof (“Company A) 2,200,000 shares have been designated Series A Preferred Stock”). As , 2,000,000 of the Measurement Date, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were which are issued and outstanding and 119,998 of which are reserved for issuance upon exercise of Company Warrants and (including 119,422 B) 2,800,000 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no shares preferred stock of Company Common Stock were held by the Company in its treasury and (iii) no shares of Company Preferred Stock were remain undesignated. All issued and outstanding. All of the outstanding shares of Company Common Stock have been duly authorized, authorized and validly issued, fully paid issued and nonassessable and free of preemptive rights. The Company has no shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, as of the Measurement Date, there were (a) 3,913,542 shares of Company Common Stock reserved for future issuance under the Company Stock Plans, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, are fully paid and nonassessable, and each were not issued in violation of the outstanding shares of capital stock or subject to any preemptive right that was not validly waived, or other securities of each of the Company’s Significant Subsidiaries is rights to subscribe for or purchase shares, and are owned beneficially and of record on the date hereof, by the Company or by a direct or indirect wholly owned Subsidiary of holders set forth in Schedule 2.2 (the Company, "Holders") free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Actpledge, the “blue sky” Laws of the various States of the United States lien, security interest, encumbrance, claim or similar Law of other applicable jurisdictions)equitable or third-party interest. Except for the Company Stockholders Agreement, as As of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating options to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The purchase 1,758,000 shares of Company Common Stock are registered under granted and outstanding and are held by the Exchange Act. Since the Measurement Date optionees set forth in Schedule 2.2, and through the date of this Agreement, the Company has not (A) issued any options to purchase 616,394 shares of Company Common Stock (other are fully vested. Other than upon the exercise or settlement shares of Company Equity Awards Stock owned by the Holders, there are no other outstanding interests, existing or contingent or direct or indirect, in Company Common Stock. Other than the Preferred Stock, the Company Options and the Company Warrants, as contemplated by Sections 1.8(b) and 5.3(g), and the conversion of the Measurement Dateoutstanding promissory notes in the aggregate principal amount of $2,724,956 into shares of Company Common Stock at a value of $4.00 per share (the "Note Conversion") there are no rights ("Company Rights") of any character, written or (B) granted oral, to which the Company is a party or by which it is bound, obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Company Equity Awards Stock or similar awards. The obligating the Company does not have outstanding to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any bondssuch rights, debentures, notes or other obligations the holders including in favor of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders employees of the Company on any matterCompany.

Company Capital Structure. In the case of the Company, the (a) The authorized capital stock of the Company consists of 500,000,000 30,000,000 shares of Company Common Stock and 50,000,000 25,000,000 shares of preferred stock, $.01 par value $0.01 per share (“"Company Preferred Stock”"), of which 7,500,000 shares are designated 14% Preferred Stock and 10,000,000 shares are designated 12% Preferred Stock. As of the Measurement Datedate of this Agreement, (i) 228,209,888 12,934,000 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no shares of Company Common Stock were held by the Company in its treasury and (iii) no shares of Company Preferred Stock were are issued and outstanding. All , all of the outstanding shares of Company Common Stock have been which are duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights. The Company has no nonassessable, (ii) 91,100 shares of Company Common Stock are held in the treasury of Company or Company by Subsidiaries of Company, (iii) 2,742,353.74 shares of 14% Preferred Stock reserved for issuanceare issued and outstanding, except that, as all of the Measurement Date, there were (a) 3,913,542 shares of Company Common Stock reserved for future issuance under the Company Stock Plans, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is which are duly authorized, validly issued, fully paid and nonassessable, and (iv) 2,000,000 shares of 12% Preferred Stock are issued and outstanding, all of which are duly authorized, validly issued, fully paid and nonassessable, all of which are, on the date hereof, and will be on the Closing Date after consummation of the transactions contemplated by Section 1.5, owned beneficially and of record by the persons and in the amounts as set forth in Section 3.2 of the Company Disclosure Schedule. The Options constitute all options to purchase stock of Company which are outstanding as of the date of this Agreement and which will be outstanding immediately before or on the Closing Date under the plans under which such options were granted (collectively, the "Company Stock Plans") and set forth on Section 3.2 of the Company Disclosure Schedule is a complete and accurate list of all holders of Options, indicating the number of shares of Company Common Stock subject to each Option and the exercise price therefor. Section 3.2 of the Company Disclosure Schedule also shows the number of shares of Company Common Stock reserved for future issuance pursuant to the Warrants (which Warrants constitute all of the warrants to purchase shares of Company's capital stock) and which will be outstanding on the Closing Date and other outstanding rights to purchase shares of Company Common Stock outstanding as of the date of this Agreement and which will be outstanding immediately before or on the Closing Date and a description of the agreement or other document under which such Warrants or other rights were granted and sets forth a complete and accurate list of all holders of Warrants or other rights indicating the number and type of shares of Company Common Stock or Company Preferred Stock subject to Warrants or -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER other rights and the exercise price. All shares of Company Common Stock or Company Preferred Stock subject to issuance as specified above are duly authorized and reserved and the shares of Company Common Stock, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be validly issued, fully paid and nonassessable. Except as set forth in the Certificate of Incorporation of Company, there are no obligations, contingent or otherwise, of Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Company Common Stock or any other capital stock of Company or any of its Subsidiaries or to provide funds to or make any material investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of Company or any other entity other than guarantees of bank obligations of Subsidiaries of Company entered into in the ordinary course of business. All of the outstanding shares of capital stock or other securities of each of the Company’s Significant 's Subsidiaries is are duly authorized, validly issued, fully paid and nonassessable and all such shares are owned beneficially and of record by the Company or by a direct or indirect wholly owned another Subsidiary of the Company, Company free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Actall security interests, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreementliens, as of the date of this Agreementclaims, there are no outstanding subscriptionspledges, options, warrants, puts, call agreements, understandingslimitations in Company's voting rights, claims charges or other agreements, commitments or rights encumbrances of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matternature.

Company Capital Structure. In the case of the Company, the The authorized capital stock of the Company consists of 500,000,000 1,500,000,000 shares of Company Common Stock and 50,000,000 10,000,000 shares of preferred stock, par value $0.01 0.001 per share share, (“Company Preferred Stock”). As At the close of the Measurement Datebusiness on December 20, 2002, (i) 228,209,888 162,847,127 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 outstanding, none of which shares of Company Common Stock are unvested or are subject to outstanding a repurchase option, risk of forfeiture or other condition providing that such shares may be forfeited or repurchased by the Company Restricted Stock Awards)or otherwise vest upon any termination of stockholder’s or grantee’s employment, directorship or other relationship with the Company or any of its subsidiaries under the terms of any restricted stock purchase agreement or other agreement with the Company, (ii) no shares of Company Common Stock were held by the Company in its treasury or by any direct or indirect subsidiary of the Company, and (iii) no shares of Company Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock have been are duly authorized, validly issued, fully paid and nonassessable and free are not subject to preemptive rights created under the DGCL, the certificate of preemptive rightsincorporation or bylaws of the Company or any agreement or document to which the Company is a party or by which it or its assets is bound. The Company has no As of December 20, 2002 (i) 20,276,299 shares of Company Common Stock or are subject to issuance pursuant to outstanding options to purchase Company Preferred Common Stock reserved for issuance, except that, as under the Company Option Plans and any other agreement of the Measurement DateCompany pursuant to which the Company has granted an option, there were each of which is set forth on Section 2.2 of the Company Disclosure Letter (acollectively, the “Non-Plan Option Agreements,”) 3,913,542 and (ii) 1,652,906 shares of Company Common Stock are reserved for future issuance under the ESPP (as defined in Section 5.7(c)). Section 2.2 of the Company Stock PlansDisclosure Letter sets forth the following information with respect to each Company Option outstanding as of the date of this Agreement, (bi) 867,802 the name of each person who held such Company Options, (ii) the particular Company Option Plan pursuant to which such Company Option was granted, (iii) the date on which such Company Option was granted or assumed, (iv) the exercise or base price of such Company Option, (v) the number of shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per shareor value covered thereby, (cvi) 5,311,304 the number of shares of Company Common Stock as to which such Company Option had vested at such date, (vii) the applicable vesting schedule for such Company Option, and (viii) the date on which such Company Option expires. The Company has made available to Parent an accurate and complete copy of each of the Company Option Plans, the Non-Plan Option Agreements, the ESPP and the standard forms of stock option agreements evidencing Company Options granted under the Company Option Plans. There are no options outstanding to purchase shares of Company Common Stock other than pursuant to the Company Options. All shares of Company Common Stock subject to outstanding Company RSU Awardsissuance as aforesaid, upon issuance on the terms and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that conditions specified in the instruments pursuant to their terms may only which they are issuable, will be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable. All outstanding shares of Company Common Stock, all outstanding Company Options, and each of the all outstanding shares of capital stock or other securities of each subsidiary of the Company’s Significant Subsidiaries is owned beneficially Company have been issued and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free granted in compliance in all material respects with (i) all applicable securities laws and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims Legal Requirements and (ii) all requirements set forth in applicable agreements or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matterinstruments.

Company Capital Structure. In the case (a) As of the CompanyAgreement Date, other than de minimis changes resulting from the exercise of Company Options, the authorized capital stock of the Company consists of 500,000,000 (i) 90,000,000 shares of Company Common Stock and 50,000,000 Stock, $0.0001 par value, of which 15,357,091 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). As of the Measurement Date, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were are issued and outstanding (including 119,422 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards)outstanding, and (ii) no shares of Company Common Stock were held by the Company in its treasury and (iii) no 58,834,395 shares of Company Preferred Stock, $0.0001 par value, (A) 11,383,245 shares of which are designated Series Z Preferred Stock were and all of which are issued and outstanding, (B) 9,762,720 shares of which are designated Series 1 Preferred Stock and all of which are issued and outstanding, (C) 8,743,807 shares of which are designated Series 2 Preferred Stock and all of which are issued and outstanding, (D) 11,458,545 shares of which are designated Series 3 Preferred Stock and all of which are issued and outstanding and (E) 17,486,078 shares of which are designated Series D Preferred Stock and all of which are issued and outstanding. All Each share of the Company Preferred Stock is convertible on a one-share for one-share basis into Company Common Stock, and there are no other issued and outstanding shares of Company Common Capital Stock have been and no commitments or Contracts to issue any shares of Company Capital Stock other than pursuant to the conversion provisions related to the Company Preferred Stock pursuant to the Certificate of Incorporation, the exercise of Company Options under the Company Equity Plan and the Company Warrant that are, in each case, outstanding as of the Agreement Date. The Company holds no treasury shares. Section 3.2(a) of the Disclosure Schedule sets forth, as of the Agreement Date, a correct and complete list of the Company Stockholders and the number and type of such shares so owned by each such Company Stockholder, and any beneficial holders thereof. All issued and outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and nonassessable non-assessable and are free of any Liens, outstanding subscriptions, preemptive rightsrights or “put” or “call” rights created by statute, the Charter Documents or any Contract to which the Company is a party or by which the Company or any of its assets is bound. The Company has never declared or paid any dividends on any shares of Company Capital Stock. There is no Liability for dividends accrued and unpaid by the Company. The Company is not under any obligation to register under the Securities Act or any other Law any shares of Company Capital Stock, any Company Securities or any other securities of the Company, whether currently outstanding or that may subsequently be issued. All issued and outstanding shares of Company Capital Stock and all Company Options were issued in compliance with Law and all requirements set forth in the Charter Documents and any applicable Contracts to which the Company is a party or by which the Company or any of its assets is bound. No shares of Company Capital Stock are subject to vesting, reverse vesting, forfeiture, a right of repurchase or to a “substantial risk of forfeiture” within the meaning of Section 83 of the Code, except for the shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, as set forth on Section 3.2(a) of the Measurement DateDisclosure Schedule (such shares set forth, there were (a) 3,913,542 shares or required to be set forth, on Section 3.2(a)-1 of Company Common Stock reserved for future issuance under the Company Stock PlansDisclosure Schedule, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cashthe “Restricted Shares”). Each Contract pursuant to which any Restricted Shares are subject to vesting or a right of repurchase or a substantial risk of forfeiture is set forth in Section 3.2(a)-1 of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matterDisclosure Schedule.

Company Capital Structure. In the case of the Company, the (a) The authorized capital stock of the Company consists of 500,000,000 (i) 1,000,000 shares of Company Common Stock Stock, of which 238,941.82 shares are issued and 50,000,000 outstanding as of the Agreement Date, and (ii) 800,000 shares of preferred stockCompany Preferred Stock, par value $0.01 per share consisting of (x) 100 shares of Series A Convertible Preferred Stock (the “Company Series A Preferred Stock”). As , of which 100 shares are issued and outstanding as of the Measurement Agreement Date, (iy) 228,209,888 750,000 shares of Company Common Series B Convertible Preferred Stock (excluding treasury shares) were the “Series B Preferred Stock”), of which 750,000 shares are issued and outstanding (including 119,422 shares as of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no shares of Company Common Stock were held by the Company in its treasury Agreement Date and (iiiz) no 49,900 shares of Company Preferred Stock were Stock, of which none are issued and outstanding as of the Agreement Date. The Company does not have any other shares of preferred stock or any other shares of capital stock or any other equity or ownership interests of any kind authorized, designated, issued or outstanding. All of the outstanding shares Shares are owned of Company Common Stock have been duly authorizedrecord and, validly issuedto the Company’s Knowledge, fully paid beneficially, by the Sellers as set forth on Schedule 2.6(a), which is accurate and nonassessable and free of preemptive rights. The Company has no shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, complete as of the Measurement Agreement Date, there were (a) 3,913,542 shares . The Shares are owned by the Sellers free and clear of Company Common Stock reserved for future issuance under the Company Stock Plans, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awardsany and all Liens, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash). Each upon delivery of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorizedShares hereunder, validly issued, fully paid Bxxxx will acquire good and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Companymarketable title thereto, free and clear of any Encumbrance and all Liens. All rights and powers to vote the Shares are held exclusively by the Sellers. All of the Shares (excluding such transfer i) have been duly authorized and validly issued and are fully paid, non-assessable and not subject to preemptive rights or similar rights created by statute, the Company’s Organizational Documents or any agreement to which the Company is a party, and (ii) have been offered, sold, issued and delivered by the Company in all material respects in compliance with the terms of any applicable agreement or other understanding to which the Company is a party, the Organizational Documents of the Company and all applicable Laws. There are no restrictions of general applicability as may be provided under any kind on the Securities Act, the “blue sky” Laws transfer of the various States Shares except those imposed by foreign, federal and state securities Laws. Except as set forth on Schedule 2.6(a)(ii), no dividends or other Distributions with respect to any shares of Company Capital Stock or any Subsidiary Securities have ever been made or declared, and none have accrued. All preferential rights of the United States or similar Law Company Preferred Stock in connection with the sale of other applicable jurisdictions). Except for substantially all of the assets of the Company Stockholders Agreementor a merger involving the Company are set forth in the Company’s Organizational Documents. Each share of Series A Preferred Stock and each share of Series B Preferred Stock is convertible as provided in the Company’s Amended and Restated Certificate of Incorporation, as amended and in effect as of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Agreement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.

Company Capital Structure. In the case of the Company, the The authorized capital stock of the Company consists of 500,000,000 25,000,000 shares of Company Common Stock and 50,000,000 Stock, no par value, of which 7,475,944 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). As of the Measurement Date, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 as of June 2, 2000, and 2,000,000 shares of Preferred Stock, no par value, of which no shares are issued or outstanding. No shares of capital stock have been issued since June 2, 2000 except pursuant to option exercises. All outstanding shares of the Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no shares of Company Common Stock were held by the Company in its treasury and (iii) no shares of Company Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock have been are duly authorized, validly issued, fully paid and nonassessable and free are not subject to preemptive rights created by statute, the Restated Certificate of preemptive rightsIncorporation or Bylaws of the Company or any agreement or document to which the Company is a party or by which it is bound. The As of the date of this Agreement, the Company has had reserved an aggregate of 1,600,000 shares of the Company Common Stock, net of exercises, for issuance to employees, consultants and non-employee directors pursuant to the 1984 Restated Nonqualified Stock Option Plan, 1984 Restated Stock Option Plan, 1987 Restated Stock Option Plan for Non-Employee Directors and the 1994 Option and Restricted Stock Plan for Employees (the "Option Plans"). (Stock options ------------ granted by the Company pursuant to the Option Plans or otherwise are referred to in this Agreement as "Company Options.") As of June 2, 2000, there were Company --------------- Options outstanding to purchase an aggregate of 1,572,416 shares of Common Stock, issued to employees, consultants and non-employee directors pursuant to the Option Plans. Except for 10,000 shares subject to options granted to Xxx Xxxxxx upon his election as a new director on June 9, 2000, no Company Options have been granted since June 2, 2000 and, except pursuant to the exercise of Company Options, no shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, as capital stock of the Measurement DateCompany have been issued by the Company since June 2, there were (a) 3,913,542 2000. All shares of Company Common Stock reserved for future issuance under the Company Stock Plans, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awardsissuance as aforesaid, upon issuance on the terms and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that conditions specified in the instruments pursuant to their terms may only which they are issuable, would be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bondshas provided the Purchaser a complete and accurate list as of June 26, debentures2000 of each person who held restricted stock or options, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders name of the Company on any matterholder of such shares or option, the exercise price of such option, and the term of such shares or option.

Company Capital Structure. In the case of the Company, the The authorized capital stock of the Company consists of 500,000,000 45,000,000 shares of Company Common Stock and 50,000,000 Stock, no par value, of which there are 10,189,969 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). As of the Measurement Date, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 as of September 30, 1999, and 5,000,000 shares of Preferred Stock, no par value, of which no shares are issued or outstanding. No shares of capital stock have been issued since September 30, 1999 except pursuant to option exercises. All outstanding shares of the Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no shares of Company Common Stock were held by the Company in its treasury and (iii) no shares of Company Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock have been are duly authorized, validly issued, fully paid and nonassessable and free are not subject to preemptive rights created by statute, the Restated Articles of preemptive rightsIncorporation or Bylaws of the Company or any agreement or document to which the Company is a party or by which it is bound. The As of the date of this Agreement, the Company has no had reserved an aggregate of 5,226,789 shares of the Company Common Stock, net of exercises, for issuance to employees, consultants and non-employee directors pursuant to the Amended and Restated 1983 Stock Option Plan, Restated 1993 Stock Option Plan and Restated 1993 Stock Option Plan for Non-Employee Directors and 1994 Non-Officer Stock Option Plan ("the Option Plans"). (Stock options granted by the Company pursuant to the Option Plans or otherwise are referred to in this Agreement as "Company Preferred Stock reserved for issuanceOptions.") As of September 30, except that, as of the Measurement Date1999, there were (a) 3,913,542 Company Options outstanding to purchase an aggregate of 2,477,892 shares of Common Stock, issued to employees, consultants and non-employee directors pursuant to the Option Plans. No Company Common Stock reserved for future issuance under the Company Stock PlansOptions have been granted since September 30, (b) 867,802 1999. All shares of the Company Common Stock subject to outstanding Company Option Awardsissuance as aforesaid, upon issuance on the terms and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that conditions specified in the instruments pursuant to their terms may only which they are issuable, would be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable. The Company Schedules list for each person who held restricted stock or options, and each the name of the outstanding holder of such shares or option, the exercise price of capital stock such option, the number of shares which will have vested at such date, the vesting schedule for such shares or other securities of each option and whether the lapsing of the Company’s Significant Subsidiaries is owned beneficially and 's repurchase rights or exercisability of record such option will be accelerated in any way by the Company or transactions contemplated by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there are no outstanding subscriptionsand indicate the extent of acceleration, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matterif any.

Company Capital Structure. In the case of the Company, the The authorized capital stock of the Company consists of 500,000,000 200,000,000 shares of Company Common Stock and 50,000,000 10,000,000 shares of preferred stock, par value $0.01 0.0001 per share share, (“"Company Preferred Stock”"), 2,000,000 of which shares have been designated Series A Junior Participating Preferred Stock, all of which will be reserved for issuance upon the exercise of preferred stock purchase rights (the "Company Rights") issuable pursuant to the Rights Agreement between the Company and Mellon Investor Services LLC, dated as of March 20, 2002 (the "Company Rights Agreement"). As At the close of the Measurement Datebusiness on July 9, 2003, (i) 228,209,888 63,975,810 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 shares none of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no shares of Company Common Stock which were held by the Company in its treasury treasury) and (iiiii) no shares of Company Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued and are fully paid and nonassessable and are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement or document to which the Company is a party or by which it or its assets is bound. As of the date hereof, (i) the Company had reserved an aggregate of 3,950,347 shares of Company Common Stock for future issuance pursuant to the Option Plans and (ii) at the close of business on July 9, 2003 there were (x) outstanding Company Options to purchase an aggregate of 11,608,105 shares of Company Common Stock pursuant to the Enumerated Option Plans (as defined in Section 5.8(a)), and (y) no outstanding Company Options to purchase shares of Company Common Stock pursuant to Option Plans other than the Enumerated Option Plans. As of the date hereof, the Company has reserved an aggregate of 2,800,892 shares of Company Common Stock for future issuance pursuant to the ESPP. All shares of Company Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, would be duly authorized, validly issued, fully paid and nonassessable and free of not subject to preemptive rights. The All of such Company Options have been granted to employees or directors of the Company in the ordinary course of business. Since March 31, 2003 and until the date hereof, the Company has no shares not granted any Company Options to officers or directors of the Company. Section 2.2 of the Company Common Stock or Disclosure Letter identifies (i) the name and location of each person who held Company Preferred Stock reserved for issuance, except that, Options as of the Measurement DateJuly 9, there were (a) 3,913,542 shares of Company Common Stock reserved for future issuance under the Company Stock Plans2003, (bii) 867,802 the particular Option Plan pursuant to which such Company Option was granted, (iii) the date on which such Company Option was granted, (iv) the exercise or base price of such Company Option, (v) the number of shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per shareor value covered thereby, (cvi) 5,311,304 the number of shares of Company Common Stock subject as to outstanding which such Company RSU AwardsOption had vested at such date, (vii) the applicable vesting schedule for such Company Option and whether the exercisability or vesting of such Company Option will be accelerated in any way by the Merger or the transactions contemplated hereby, and (dviii) 5,494,388 shares of the date on which such Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash)Option expires. Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as As of the date of this Agreementhereof, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights agreements of any type relating character to the issuance, sale, redemption or transfer by which the Company is bound obligating the Company to accelerate the vesting or exercisability of any equity securities Company Option as a result of the Company Merger, either alone or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares upon the occurrence of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any mattersubsequent events.

Company Capital Structure. In the case of the Company, the (a) The authorized share capital stock of the Company consists is SEK 1,179,462, divided into 11,794,620 ordinary shares, of 500,000,000 which all 11,794,620 shares are issued and outstanding as of Company Common Stock and 50,000,000 shares the date of preferred stock, par value $0.01 per share (“Company Preferred Stock”)this Agreement. As of the Measurement Datedate hereof, the capitalization of the Company is as set forth in Section 3.2(a)(i) of the Sellers’ Disclosure Schedule. Assuming the same total capitalization as on the date hereof, the total number of Shares outstanding as of immediately prior to the Closing (iassuming the exercise of all Company Warrants and the conversion of all Company Convertible Debentures) 228,209,888 will be as set forth in Section 3.2(a)(i) of the Sellers’ Disclosure Schedule. The Shares are, as of October 25, 2007, held of record by the Persons with the domicile or business addresses and in the amounts set forth in the attached extract from the VPC register, attached hereto as Section 3.2(a)(ii) of the Sellers’ Disclosure Schedule, which further sets forth for each such Person the number of shares held. For the purposes of this Section 3.2(a), the term “of record” shall mean the persons set forth in the VPC register as of October 25, 2007, and for the avoidance of doubt, exclusively as of such date and not as of any other date. The Company has issued Company Warrants to the Persons, and in the amounts, as set forth in Section 3.2(a)(iii) of the Sellers’ Disclosure Schedule, which further sets forth for each such Person the number of Company Warrants so issued and the applicable exercise prices and expiration dates, and whether such Company Warrant has been exercised. The Company has delivered to Parent and Purchaser a true, correct and complete copy of the form of the Company Warrant in the form attached to Section 3.2(a)(iv) of the Sellers’ Disclosure Schedule and each issued and outstanding Company Warrant is identical in form (other than number of shares and exercise prices) as the form of Company Warrant so delivered. To the Knowledge of the Sellers, Section 3.2(a)(iii) of the Sellers’ Disclosure Schedule sets forth information regarding the beneficial owners of the Company Warrants as of the Closing, including the identity of such beneficial owners and the number of Company Warrants owned by such owners. Each Company Warrant had, on the date of grant, an exercise price of no less than the fair market value of the shares of Company Common Capital Stock (excluding treasury sharessubject to such Company Warrant. The Company has issued Company Convertible Debentures to the Persons, and in the amounts, as set forth in Section 3.2(a)(v) were of the Sellers’ Disclosure Schedule, which further sets forth for each such Person the principal amount for each such Company Convertible Debenture, interest accrued through the date of this Agreement, if any, and the number of new shares of the Company issuable in respect of each such Company Convertible Debenture. The Company has delivered true, correct and complete copies of each issued and outstanding (including 119,422 shares of Company Common Stock subject Convertible Debenture to outstanding Company Restricted Stock Awards), (ii) no shares of Company Common Stock were held by the Company in its treasury Parent and (iii) no shares of Company Preferred Stock were issued and outstandingPurchaser. All of the outstanding shares of Company Common Capital Stock have been are duly authorized, validly issued, fully paid and nonassessable non-assessable and free are not subject to preemptive rights created by statute, the Articles of preemptive rights. The Company has no shares of Company Common Stock Association, or Company Preferred Stock reserved for issuance, except that, as of the Measurement Date, there were (a) 3,913,542 shares of Company Common Stock reserved for future issuance under any agreement to which the Company Stock Plans, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have is a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company party or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matterit is bound.

Company Capital Structure. In the case of the Company, the (a) The authorized capital stock of the Company consists of 500,000,000 30,000,000 shares of Company Common Stock and 50,000,000 25,000,000 shares of preferred stock, $.01 par value $0.01 per share (“"Company Preferred Stock”"), of which 7,500,000 shares are designated 14% Preferred Stock and 10,000,000 shares are designated 12% Preferred Stock. As of the Measurement Datedate of this Agreement, (i) 228,209,888 12,934,000 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no shares of Company Common Stock were held by the Company in its treasury and (iii) no shares of Company Preferred Stock were are issued and outstanding. All , all of the outstanding shares of Company Common Stock have been which are duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights. The Company has no nonassessable, (ii) 91,100 shares of Company Common Stock are held in the treasury of Company or Company by Subsidiaries of Company, (iii) 2,742,353.74 shares of 14% Preferred Stock reserved for issuanceare issued and outstanding, except that, as all of the Measurement Date, there were (a) 3,913,542 shares of Company Common Stock reserved for future issuance under the Company Stock Plans, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is which are duly authorized, validly issued, fully paid and nonassessable, and (iv) 2,000,000 shares of 12% Preferred Stock are issued and outstanding, all of which are duly authorized, validly issued, fully paid and nonassessable, all of which are, on the date hereof, and will be on the Closing Date after consummation of the transactions contemplated by Section 1.5, owned beneficially and of record by the persons and in the amounts as set forth in Section 3.2 of the Company Disclosure Schedule. The Options constitute all options to purchase stock of Company which are outstanding as of the date of this Agreement and which will be outstanding immediately before or on the Closing Date under the plans under which such options were granted (collectively, the "Company Stock Plans") and set forth on Section 3.2 of the Company Disclosure Schedule is a complete and accurate list of all holders of Options, indicating the number of shares of Company Common Stock subject to each Option and the exercise price therefor. Section 3.2 of the Company Disclosure Schedule also shows the number of shares of Company Common Stock reserved for future issuance pursuant to the Warrants (which Warrants constitute all of the warrants to purchase shares of Company's capital stock) and which will be outstanding on the Closing Date and other outstanding rights to purchase shares of Company Common Stock outstanding as of the date of this Agreement and which will be outstanding immediately before or on the Closing Date and a description of the agreement or other document under which such Warrants or other rights were granted and sets forth a complete and accurate list of all holders of Warrants or other rights indicating the number and type of shares of Company Common Stock or Company Preferred Stock subject to Warrants or -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER 11 other rights and the exercise price. All shares of Company Common Stock or Company Preferred Stock subject to issuance as specified above are duly authorized and reserved and the shares of Company Common Stock, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be validly issued, fully paid and nonassessable. Except as set forth in the Certificate of Incorporation of Company, there are no obligations, contingent or otherwise, of Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Company Common Stock or any other capital stock of Company or any of its Subsidiaries or to provide funds to or make any material investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of Company or any other entity other than guarantees of bank obligations of Subsidiaries of Company entered into in the ordinary course of business. All of the outstanding shares of capital stock or other securities of each of the Company’s Significant 's Subsidiaries is are duly authorized, validly issued, fully paid and nonassessable and all such shares are owned beneficially and of record by the Company or by a direct or indirect wholly owned another Subsidiary of the Company, Company free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Actall security interests, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreementliens, as of the date of this Agreementclaims, there are no outstanding subscriptionspledges, options, warrants, puts, call agreements, understandingslimitations in Company's voting rights, claims charges or other agreements, commitments or rights encumbrances of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matternature.

Company Capital Structure. In the case of the Company, the (a) The authorized capital stock of the Company consists of 500,000,000 200,000,000 shares of Company Common Stock and 50,000,000 5,000,000 shares of preferred stockPreferred Stock, par value $0.01 .01 per share (“"Company Preferred Stock”"), of which 2,000,000 shares have been designated as "Series A Participating Preferred Stock". As of the Measurement DateAugust 9, 2004, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no 97,283,455 shares of Company Common Stock were held by the Company in its treasury issued and outstanding, all of which are validly issued, fully paid and nonassessable, (iiiii) no shares of Company Preferred Stock were issued and outstanding. All of the outstanding , and (iii) 3,071,380 shares of Company Common Stock have been duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights. The Company has no shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, as were held in the treasury of the Measurement Date, there were (a) 3,913,542 Company or by Subsidiaries of the Company. The Company Disclosure Letter shows the number of shares of Company Common Stock reserved for future issuance pursuant to warrants, stock options and other stock awards, and restricted stock awards granted and outstanding as of August 9, 2004 under the 2003 Equity Participation Plan, the Amended and Restated Stock Option Plan for Key Employees of Tuboscope Vetco International Corporation, the Stock Option Plan for Non-Employee Directors, the 1990 Stock Option Plan and the 1994 Directors' Stock Option Plan, in each case, as amended (collectively, the "Company Stock Plans"). Except for the issuance of shares of Company Common Stock in connection with Company Stock Plans (including the exercise of warrants, stock options or other stock awards thereunder), or pursuant to the Varco International, Inc. Employee Stock Purchase Plan (b) 867,802 the "Company Stock Purchase Plan"), or except as set forth in the Company Disclosure Letter, no change in such capitalization has occurred between August 9, 2004 and the date of this Agreement. All shares of Company Common Stock subject to outstanding Company Option Awardsissuance as specified above are duly authorized and, upon issuance on the terms and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that conditions specified in the instruments pursuant to their terms may only which they are issuable, shall be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there There are no outstanding subscriptionsobligations, optionscontingent or otherwise, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreementrepurchase, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.redeem

Company Capital Structure. In the case of the Company, the (a) The authorized capital stock of the Company consists of 500,000,000 200,000,000 shares of Company Common Stock and 50,000,000 5,000,000 shares of preferred stockPreferred Stock, par value $0.01 .01 per share (“Company Preferred Stock”), of which 2,000,000 shares have been designated as “Series A Participating Preferred Stock”. As of the Measurement DateAugust 9, 2004, (i) 228,209,888 shares of Company Common Stock (excluding treasury shares) were issued and outstanding (including 119,422 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards), (ii) no 97,283,455 shares of Company Common Stock were held by the Company in its treasury issued and outstanding, all of which are validly issued, fully paid and nonassessable, (iiiii) no shares of Company Preferred Stock were issued and outstanding. All of the outstanding , and (iii) 3,071,380 shares of Company Common Stock have been duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights. The Company has no shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, as were held in the treasury of the Measurement Date, there were (a) 3,913,542 Company or by Subsidiaries of the Company. The Company Disclosure Letter shows the number of shares of Company Common Stock reserved for future issuance pursuant to warrants, stock options and other stock awards, and restricted stock awards granted and outstanding as of August 9, 2004 under the 2003 Equity Participation Plan, the Amended and Restated Stock Option Plan for Key Employees of Tuboscope Vetco International Corporation, the Stock Option Plan for Non-Employee Directors, the 1990 Stock Option Plan and the 1994 Directors’ Stock Option Plan, in each case, as amended (collectively, the “Company Stock Plans”). Except for the issuance of shares of Company Common Stock in connection with Company Stock Plans (including the exercise of warrants, stock options or other stock awards thereunder), or pursuant to the Varco International, Inc. Employee Stock Purchase Plan (b) 867,802 the “Company Stock Purchase Plan”), or except as set forth in the Company Disclosure Letter, no change in such capitalization has occurred between August 9, 2004 and the date of this Agreement. All shares of Company Common Stock subject to outstanding Company Option Awardsissuance as specified above are duly authorized and, upon issuance on the terms and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that conditions specified in the instruments pursuant to their terms may only which they are issuable, shall be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as of the date of this Agreement, there There are no outstanding subscriptionsobligations, optionscontingent or otherwise, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights of any type relating to the issuance, sale, redemption or transfer by the Company of any equity securities of the Company or its Subsidiaries, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation to issue any additional securities or to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreementrepurchase, the Company has not (A) issued any shares of Company Common Stock (other than upon the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or (B) granted any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.redeem

Company Capital Structure. In the case of the Company, the (a) The authorized capital stock of the Company consists of 500,000,000 (i) 97,000,000 shares of Company Common Stock and 50,000,000 Stock, 75,000,000 of which are shares of preferred stockCommon Stock, no par value $0.01 per share (“the "COMMON STOCK"), 3,000,000 of which are shares of Common Stock Series B, no par value per share (the "SERIES B COMMON STOCK"), 1,500,000 of which are shares of Common Stock Series C, no par value per share (the "SERIES C COMMON STOCK"), 15,000,000 of which are shares of Common Stock Series D, no par value per share (the "SERIES D COMMON STOCK"), and 2,500,000 of which are shares of Common Stock Series E, no par value per share (the "SERIES E COMMON STOCK"); and (ii) 10,000,000 shares of Company Preferred Stock”). As of the Measurement Datedate of this Agreement, (i) 228,209,888 2,500,000 shares of Company Common Stock (excluding treasury shares) were are issued and outstanding; 1,400,000 shares of Series B Common Stock are issued and outstanding; 1,500,000 shares of Series C Common Stock are issued and outstanding; 5,654,192 shares of Series D Common Stock would be issued and outstanding assuming (including 119,422 shares of Company Common Stock subject to outstanding Company Restricted Stock Awards), (iiA) no shares of Series F Preferred Stock are tendered to Microsoft pursuant to the Offer to Purchase (as defined in Section 2.5(c)) and (B) no Company Options or Warrants are exercised in order to effect a tender of the Series F Preferred Stock to Microsoft ("No Tender or Exercise") and 12,164,916 would be issued and outstanding assuming (A) all shares of Series F Preferred Stock are tendered to Microsoft pursuant to the Offer to Purchase and (B) the Company Options or Warrants are exercised in order to effect a full tender of the Series F Preferred Stock to Microsoft ("Full Tender and Exercise"); and 2,100,000 shares of Series E Common Stock were held by the Company in its treasury and (iii) no shares of Company Preferred Stock were are issued and outstanding. As of the date of this Agreement, 1,600,000 shares of Series A Convertible Preferred Stock, no par value per share (the "SERIES A PREFERRED STOCK"), are authorized, of which 1,131,000 would be issued and outstanding assuming No Tender or Exercise and 1,191,000 would be issued and outstanding, assuming a Full Tender and Exercise; 3,400,000 shares of Series B Convertible Preferred Stock, no par value per share (the "SERIES B PREFERRED STOCK"), are authorized, of which 3,036,596 would be issued and outstanding assuming No Tender or Exercise and 3,048,871 would be issued and 16 outstanding assuming a Full Tender and Exercise; 2,000,000 shares of Series C Convertible Preferred Stock, no par value per share (the "SERIES C PREFERRED STOCK"), are authorized, of which 1,008,750 would be issued and outstanding assuming No Tender or Exercise, and 1,108,750 would be issued and outstanding assuming a Full Tender and Exercise; 200,000 shares of Series D Convertible Preferred Stock, no par value per share (the "SERIES D PREFERRED STOCK"), are authorized, of which 200,000 are issued and outstanding; 792,000 shares of Series E Preferred Stock are authorized, of which 184,604 are issued and outstanding; and 1,180,000 shares of Series F Preferred Stock are authorized of which 751,546 shares would be issued and outstanding assuming No Tender or Exercise and 1,034,725 shares would be issued and outstanding assuming a Full Tender and Exercise. Subject to the assumptions set forth above, there are no other authorized, issued or outstanding shares of capital stock of the Company. All of the outstanding shares of Company Common Capital Stock have been duly authorized, authorized and validly issued, fully paid and nonassessable and free of preemptive rights. The Company has no shares of Company Common Stock or Company Preferred Stock reserved for issuance, except that, as of the Measurement Date, there were (a) 3,913,542 shares of Company Common Stock reserved for future issuance under the Company Stock Plans, (b) 867,802 shares of Company Common Stock subject to outstanding Company Option Awards, and such Company Option Awards have a weighted average exercise price of $21.03 per share, (c) 5,311,304 shares of Company Common Stock subject to outstanding Company RSU Awards, and (d) 5,494,388 shares of Company Common Stock subject to outstanding Company PSU Awards (assuming maximum performance and excluding those Company PSU Awards that pursuant to their terms may only be settled in cash). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, are fully paid and nonassessable, and each of the outstanding shares of capital stock or other securities of each of the Company’s Significant Subsidiaries is owned beneficially and of record by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Encumbrance (excluding such transfer restrictions of general applicability as may be provided under the Securities Act, the “blue sky” Laws of the various States of the United States or similar Law of other applicable jurisdictions). Except for the Company Stockholders Agreement, as As of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, call agreements, understandings, claims or other agreements, commitments or rights shares of any type relating to the issuance, sale, redemption or transfer Company Capital Stock held in treasury by the Company of any equity securities Company. Upon consummation of the Company or its SubsidiariesMerger, nor are there outstanding any securities which are convertible into or exchangeable (A) the shares of Parent Common Stock issued in exchange for any shares of capital stock of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has any obligation Capital Stock that are subject to issue any additional securities or a Contract pursuant to pay for or repurchase any securities of the Company or its Subsidiaries. The shares of Company Common Stock are registered under the Exchange Act. Since the Measurement Date and through the date of this Agreement, which the Company has not (A) issued the right to repurchase, redeem or otherwise reacquire any shares of Company Common Capital Stock (will, without any further act of Parent, the Company or any other than upon person, become subject to the exercise or settlement of Company Equity Awards outstanding as of the Measurement Date) or restrictions, conditions and other provisions contained in such Contract, and (B) granted Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any Company Equity Awards or similar awards. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any mattersuch Contract.