Common use of Company Capital Structure Clause in Contracts

Company Capital Structure. The authorized capital stock of Company consists of 45,000,000 shares of Class A Common Stock, $0.0001 par value per share, of which there were 9,655,000 shares issued and outstanding as of May 18, 1998, and 5,000,000 shares of Class B Common Stock, $0.0001 par value per share, of which no shares are issued or outstanding. All outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid and nonassessable and are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of Company or any agreement or document to which Company is a party or by which it is bound. As of May 18, 1998, Company had reserved an aggregate of 879,000 shares of Class A Common Stock and 200,000 shares of Class B Common Stock, net of exercises, for issuance pursuant to the Company Stock Option Plans. As of May 18, 1998, there were options outstanding to purchase an aggregate of 848,500 shares of Class A Common Stock and 191,750 shares of Class B Common Stock pursuant to the Company Stock Option Plans. 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. The Company Schedules list for each person who held options to acquire shares of Company Common Stock as of May 18, 1998, the name of the holder of such option, the exercise price of such option, the number of shares as to which such option had 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, and indicates the extent of acceleration, if any.

Company Capital Structure. (a) The authorized capital stock of the Company consists of 45,000,000 100,000,000 shares of Class A authorized Common Stock, $0.0001 par value per shareof which 6,756,915 shares are issued and outstanding, and 18,315,000 shares of authorized Preferred Stock, 8,315,000 of which are designated Series A Preferred Stock, of which there were 9,655,000 2,666,667 shares are issued and outstanding as of May 18, 1998outstanding, and 5,000,000 shares 10,000,000 of Class which are designated Series B Common Preferred Stock, $0.0001 par value per share, of which no shares none are issued or and outstanding. Except as set forth in the foregoing sentence, there are no equity securities of the Company outstanding. The Company Capital Stock is held of record by the persons, with the addresses of record and in the amounts set forth on Schedule 2.2(a). All outstanding shares of Company Common Capital Stock are duly authorized, validly issued, fully paid and nonassessable non-assessable and are not subject to preemptive rights created by statute, the Certificate Articles of Incorporation or Bylaws of the Company or any agreement or document to which the Company is a party or by which it is bound. As All preferential rights of May 18, 1998, the Company had Preferred Stock in connection with or arising from the Merger are as set forth in the Articles of Incorporation of the Company. -9- (b) The Company has reserved an aggregate of 879,000 3,000,000 shares of Class A Common Stock and 200,000 shares of Class B Common Stock, net of exercises, for issuance to employees and consultants pursuant to the Company Stock Option Plans. As Plan, of May 18, 1998, there were options outstanding to purchase an aggregate of 848,500 which 1,507,000 shares of Class A Common Stock and 191,750 shares of Class B Common Stock pursuant to the Company Stock Option Plans. All shares of Company Common Stock are subject to issuance as aforesaidoutstanding, upon issuance on the terms unexercised options and conditions specified in the instruments pursuant to which they are issuable, would be duly authorized, validly issued, fully paid and nonassessable1,085,000 shares remain available for future grant. The Company Schedules list has reserved no shares of Common Stock for issuance upon exercise of outstanding Company Options granted outside the Option Plan and 3,000,000 shares of Common Stock for issuance upon exercise of outstanding warrants (the “Warrants”). Schedule 2.2(b) sets forth for each person who held options to acquire shares of outstanding Company Common Stock as of May 18, 1998Option or Warrant, the name of the holder of such optionoption or Warrant, the domicile address of such holder, the number of shares of Common Stock subject to such option or Warrant, the exercise price of such option, the number of shares as to which such option had vested at such date, or Warrant and the vesting schedule for such option or Warrant, including the extent vested to date and whether the exercisability of such option or Warrant will be accelerated in any way and become exercisable by reason of the transactions contemplated by this Agreement. Except for the Company Options and Warrants described in Schedule 2.2(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or 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 the capital stock of the Company or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. The holders of Company Options and Warrants have been or will be given, or shall have properly waived, any required notice prior to the Merger, and indicates all such rights to notice shall have expired or will be terminated at or prior to the extent Effective Time. As a result of accelerationthe Merger, if any.Parent will be the sole record beneficial owner of all capital stock of the Company and rights to acquire or receive such capital stock. Except as contemplated by this Agreement or set forth in Schedule 2.2(b) there are no registration rights agreements, no voting trust, proxy or other agreement or understanding to which the Company is a party or by which it is bound with respect to any equity security of any class of the Company. 2.3

Company Capital Structure. The authorized capital stock of Company consists of 45,000,000 1,000,000,000 shares of Class A Common Stock, $0.0001 no par value per sharevalue, of which there were 9,655,000 128,282,596 shares issued and outstanding as of May 18June 12, 19982000, and 5,000,000 10,000,000 shares of Class B Common Preferred Stock, $0.0001 no par value per sharevalue, of which no shares are issued or outstanding. All outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid and nonassessable and are not subject to preemptive rights created by statute, the Certificate Articles of Incorporation or Bylaws of Company or any agreement or document to which Company is a party or by which it is bound. As of May 18June 12, 19982000, Company had reserved an aggregate of 879,000 19,491,960 shares of Class A Common Stock and 200,000 shares of Class B Company Common Stock, net of exercises, for issuance to employees, consultants and non-employee directors pursuant to the Company Stock 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 May 18June 12, 19982000, there were options outstanding to purchase Company had reserved an aggregate of 848,500 685,582 shares of Class A Company Common Stock and 191,750 shares for issuance to holders of Class B warrants to purchase Company Common Stock pursuant to the Company Stock Option Plans("COMPANY WARRANTS"). 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. The Section 2.2 of the Company Schedules list for Schedule lists (i) each person who held options outstanding option to acquire shares of Company Common Stock as of May 18at June 12, 19982000, the name of the holder of such option, the number of shares subject to such option, the exercise price of such option, the number of shares as to which such option had 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 AgreementAgreement or for any other reason, and indicates the extent of acceleration, if 13 any, and (ii) each outstanding Company Warrant at June 12, 2000, the name of the holder of such Company Warrant and the exercise price therefor.

Company Capital Structure. The authorized capital stock of Company consists of 45,000,000 40,000,000 shares of Class A Common Stock, $0.0001 0.01 par value per share, of which there were 9,655,000 13,825,196 shares issued and outstanding as of May 18January 31, 1998, 1998 (with no shares held in treasury) and 5,000,000 shares of Class B Common Preferred Stock, $0.0001 0.01 par value per share, of which no shares are issued or outstanding. All outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid and nonassessable and are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of Company or any agreement or document to which Company is a party or by which it is bound. As of May 18January 31, 1998, Company had reserved an aggregate of 879,000 1,704,956 shares of Class A Common Stock and 200,000 shares of Class B Company Common Stock, net of exercises, for issuance pursuant to the Company Stock Option PlansPlans and an aggregate of 369,273 shares of Company Common Stock for issuance pursuant to the Company's ESPP. As of May 18January 31, 1998, there were options outstanding to purchase an aggregate of 848,500 1,394,687 shares of Class A Common Stock and 191,750 shares of Class B Company Common Stock pursuant to the Company Stock Option Plans. In addition, as of May 28, 1998, the Company will be obligated to issue options to purchase 1,250 shares of Common Stock to each outside member of its Board of Directors pursuant to the Directors' Plan in connection with the Company's 1998 annual meeting of shareholders. As of May 28, 1998, the Company also will be obligated to issue approximately 38,000 shares of Common Stock to employees of the Company 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. The Company Schedules list for each person who held options to acquire shares of Company Common Stock as of May 18January 3, 1998, the name of the holder of such option, the exercise price of such option, the number of shares as to which such option had 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, and indicates the extent of acceleration, if any.

Company Capital Structure. (a) The authorized capital stock of the Company consists of 45,000,000 an aggregate of 28,770,000 shares of Class A Company Capital Stock, consisting of an aggregate of 21,500,000 shares of Company Common Stock and an aggregate of 7,270,000 shares of Company Preferred Stock. Each share of Company Preferred Stock is convertible into one share of Company Common Stock. As of the Agreement Date, $0.0001 par value per share(i) an aggregate of 8,934,803 shares of Company Common Stock are issued and outstanding, none of which there were 9,655,000 are Company Restricted Stock, (ii) an aggregate of 7,196,176 shares of Company Preferred Stock are issued and outstanding as of May 18, 1998outstanding, and 5,000,000 shares of Class B Common Stock, $0.0001 par value per share, of which (iii) no shares are issued or outstandingheld in the treasury of the Company. All of the issued and outstanding shares of Company Common Capital Stock are duly authorized, validly issued, fully paid and nonassessable non-assessable and are not subject to preemptive rights created by statuteLaw, the Certificate of Incorporation or Bylaws of Company Charter Documents, or any agreement or document Contract 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. As of May 18the Agreement Date, 1998the Company Capital Stock is held by the Persons as set forth on Section 3.2(a) of the Disclosure Schedule, which sets forth for each such shareholder (i) the address of such shareholder on record with the Company had and, to the extent known by the Company, the electronic mail address of such shareholder; (ii) the number, class and series of shares held by stock certificate number; (iii) the date of purchase of such shares; (iv) the purchase price of such shares; (v) whether such shares were acquired pursuant the exercise of an incentive stock option (as defined in Section 422 of the Code); (vi) any vesting schedule and repurchase price, if any, applicable to such shares (including whether the vesting of such Company Restricted Stock is subject to acceleration as a result of the transactions contemplated by this Agreement or any other events); (vii) whether any of such shares were eligible for an election under Section 83(b) of the Code, including the date of issuance of such shares and, to the Knowledge of the Company, whether such election under Section 83(b) of the Code was timely made; and (viii) the percentage held by such shareholder relative to each class or series of shares such shareholder owns and the total issued and outstanding shares of Company Capital Stock as of the Agreement Date. The Company has reserved an aggregate of 879,000 shares of Class A Common Stock and 200,000 shares of Class B Common Stock, net of exercises, for issuance pursuant to the Company Stock Option Plans. As of May 18, 1998, there were options outstanding to purchase an aggregate of 848,500 shares of Class A Common Stock and 191,750 shares of Class B Common Stock pursuant to the Company Stock Option Plans. All 3,556,789 shares of Company Common Stock subject to for issuance as aforesaidunder the Plan, upon issuance on the terms and conditions specified in the instruments pursuant to of which they (i) an aggregate of 2,765,449 shares are issuable, would be duly authorizedas of the Agreement Date, validly issuedupon the exercise of outstanding, fully paid and nonassessable. The Company Schedules list for each person who held unexercised options to acquire granted under the Plan, (ii) 748,912 shares of Company Common Stock have been issued upon the exercise of options or purchase of restricted stock granted under the Plan and remain outstanding as of May 18the Agreement Date, 1998and (iii) 42,428 shares remain available for future grant. The Company has not issued (i) any Company Restricted Stock or (ii) any Company Option (or other right to acquire any shares of Company Capital Stock) which may provide for the issuance of any Company Restricted Stock prior to the Effective Time (other than as set forth in Section 3.2(d) of the Disclosure Schedule). The Company has reserved a sufficient number of authorized and unissued shares of Company Capital Stock to allow for the issuance of all shares of Company Capital Stock issuable upon exercise and conversion of all outstanding Company Preferred Stock, Company Options and Company Warrants. Except as set forth in this Section 3.2(a), the name of the holder of such optionCompany has no other capital stock authorized, the exercise price of such option, the number of shares as to which such option had 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, and indicates the extent of acceleration, if anyissued or outstanding.

Company Capital Structure. The authorized capital stock of the Company consists of 45,000,000 shares an unlimited number of Class A Common StockShares, $0.0001 without nominal or par value per sharevalue, of which there were 9,655,000 6,962,747 shares issued and outstanding as of May 18August 31, 19981999 and an unlimited number of Preferred Shares without nominal or par value, and 5,000,000 shares of Class B Common Stock, $0.0001 par value per shareissuable in series, of which no shares are issued or outstanding. All outstanding shares of Company Common Stock Shares are duly authorized, validly issued, 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 is bound. As of May 18September 1, 19981999, the Company had reserved an aggregate of 879,000 shares of Class A 1,857,337 Common Stock and 200,000 shares of Class B Common StockShares, net of exercises, for issuance to employees, consultants and non-employee directors pursuant to the Company Company's Employee Stock Option PlansPlan ("the Option Plan") as well as options issued outside the Option Plan and 29,288 Common Shares for issuance pursuant to the Company's Employee Share Purchase Plan. As of May 18September 1, 19981999, there were options outstanding to purchase an aggregate of 848,500 shares of Class A 1,450,839 Common Stock Shares, issued to employees, consultants and 191,750 shares of Class B Common Stock non-employee directors pursuant to the Company Stock Option PlansPlan and otherwise. All shares of the Company Common Stock Shares 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. The Company Schedules has delivered to Parent a complete and accurate list for of each person who held options to acquire shares of Company Common Stock as of May 18, 1998restricted stock or options, the name of the holder of such shares or option, the exercise price of such option, the number of shares as to which such option had will have vested at such date, the vesting schedule for such option shares or option, and has identified on such list whether the lapsing of the Company's repurchase rights or exercisability of such option will be accelerated in any way by the transactions contemplated by this Agreement, and indicates has indicated the extent of acceleration, if any.

Company Capital Structure. The authorized capital stock of Company consists of 45,000,000 20,000,000 shares of Class A Company Common Stock, $0.0001 par value per share, of which there were 9,655,000 2,575,625 shares issued and outstanding as of May 18, 1998the date hereof, and 5,000,000 11,500,000 shares of Class B Common Stockpreferred stock, $0.0001 par value $.001 per share, of which no 6,804,349 shares of Company Preferred Stock are issued or outstandingoutstanding as of the date hereof. All outstanding shares of Company Common Stock and Company Preferred Stock are duly authorized, validly issued, fully paid paid, and nonassessable nonassessable, and are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of Company Company, or any agreement or document to which Company is a party or by which it is bound. As of May 18the date hereof, 1998, Company had reserved an aggregate of 879,000 there are warrants to purchase 800,000 shares of Class A Company Common Stock ("COMPANY WARRANTS") outstanding and 200,000 options to purchase 840,000 shares of Class B Company Common Stock, net Stock ("COMPANY OPTIONS") outstanding. The Company's 2001 Stock Option Plan has a total of exercises, 2,630,000 shares of Company Common Stock reserved for issuance pursuant to the Company Stock Option Plans. As of May 18, 1998, there were options outstanding to purchase an aggregate of 848,500 shares of Class A Common Stock and 191,750 shares of Class B Common Stock pursuant to the Company Stock Option Planssuch plan. 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 paid, and nonassessable. The Schedule 2.2 of the Company Schedules list for Schedule lists (i) each person who held options to acquire shares outstanding share of Company Common Stock as of May 18, 1998and Company Preferred Stock, the name of the holder of such security and the vesting schedule for such security, if applicable, (ii) each outstanding Company Option to acquire shares of Company Common Stock, the name of the holder of such option, the number of shares subject to such option, the exercise price of such option, the number of shares as to which such option had 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 AgreementAgreement or for any other reason, and indicates the extent of acceleration, if any, and (iii) each outstanding Company Warrant, the name of the holder of such Company Warrant, the number of shares subject to such Company Warrant, the exercise price of such Company Warrant, the number of shares as to which such Company Warrant will have vested at such date, the vesting schedule for such Company Warrant and whether the exercisability of such Company Warrant will be accelerated in any way by the transactions contemplated by this Agreement or for any other reason, and indicates the extent of acceleration, if any.