Common use of Company Capitalization Clause in Contracts

Company Capitalization. (a) The authorized capital stock of Company consists solely of 50,000,000 shares of Company Common Stock, of which there were 23,912,106 shares issued and outstanding as of the close of business on October 21, 2003, and 2,000,000 shares of preferred stock, $.01 par value per share, none of which are issued or outstanding. Each outstanding share of Company Common Stock is duly authorized, validly issued, fully paid and nonassessable and was not issued in violation of any preemptive or similar rights. (b) As of the date of this Agreement: (i) 4,068,687 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s Amended and Restated 1992 Employee and Consultant Stock Option and Incentive Plan; (ii) 937,875 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Employee and Consultant Stock Option and Incentive Plan; (iii) 62,500 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 1995 Directors Stock Option Plan; (iv) 100,000 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Directors Stock Option Plan, as amended and; (v) 421,598 shares of Company Common Stock are reserved for future issuance under Company ESPP. Part 2.2(b) of the Company Disclosure Letter sets forth the following information with respect to each Company Option outstanding as of the date of this Agreement: (i) the name of the optionee; (ii) the number of shares of Company Common Stock subject to such Company Option; (iii) the exercise price of such Company Option; (iv) the date on which such Company Option was granted or assumed; (v) the vesting schedule of such Company Option, and the extent to which such Company Option is vested as of the date of this Agreement; (vi) the date on which such Company Option expires; and (vii) whether the exercisability of such option will be accelerated in any way by the transactions contemplated by this Agreement, and indicates the extent of any such acceleration. Company has delivered to Parent an accurate and complete copy of Company Stock Option Plans, the standard form of all stock option agreements under each of Company Stock Option Plans, and the option agreement for each Company Option that does not conform to the standard option agreement under the respective Company Stock Option Plan. There are no options outstanding to purchase shares of Company Common Stock other than Company Options and pursuant to Company’s ESPP. All shares of Company Common Stock subject to issuance as aforesaid in this Section 2.2(b), upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no Contracts (as defined below in Section 2.14) of any character to which Company is bound obligating Company to accelerate the vesting of any Company Option as a result of the Merger, except accelerated vesting pursuant to Company Stock Option Plans, and agreements evidencing acceleration of vesting for Company Options, all of which acceleration is described in Part 2.2(b) of the Company Disclosure Schedule. There are no outstanding or authorized stock appreciation, “phantom stock,” or other similar plans or Contracts with respect to Company or any of its subsidiaries. At the Effective Time, the Company Options shall be terminated without further obligation or liability of Company, Parent or the Surviving Corporation. (c) Except as set forth in Part 2.2(c) of the Company Disclosure Letter, all outstanding shares of Company Common Stock, all outstanding Company Options, and all outstanding shares of capital stock of each subsidiary of Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements and (ii) all requirements set forth in applicable agreements or instruments. For the purposes of this Agreement, “Legal Requirements” means any federal, state, local, municipal, foreign or other law of any Governmental Entity (as defined in Section 2.4), except where the failure to have been issued and granted in compliance with such securities laws and other requirements would not reasonably be expected to have a Material Adverse Effect on the Company.

Company Capitalization. (a) The authorized capital stock of Company consists solely of 50,000,000 shares of Company Common Stock, of which there were 23,912,106 shares issued and outstanding as of the close of business on October 21, 2003, and 2,000,000 shares of preferred stock, $.01 par value per share, none of which are issued or outstanding. Each outstanding share of Company Common Stock is duly authorized, validly issued, fully paid and nonassessable and was not issued in violation of any preemptive or similar rights. (b) As of the date of this Agreement: (i) 4,068,687 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 's Amended and Restated 1992 Employee and Consultant Stock Option and Incentive Plan; (ii) 937,875 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 's 2002 Employee and Consultant Stock Option and Incentive Plan; (iii) 62,500 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 's 1995 Directors Stock Option Plan; (iv) 100,000 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 's 2002 Directors Stock Option Plan, as amended and; (v) 421,598 shares of Company Common Stock are reserved for future issuance under Company ESPP. Part 2.2(b) of the Company Disclosure Letter sets forth the following information with respect to each Company Option outstanding as of the date of this Agreement: (i) the name of the optionee; (ii) the number of shares of Company Common Stock subject to such Company Option; (iii) the exercise price of such Company Option; (iv) the date on which such Company Option was granted or assumed; (v) the vesting schedule of such Company Option, and the extent to which such Company Option is vested as of the date of this Agreement; (vi) the date on which such Company Option expires; and (vii) whether the exercisability of such option will be accelerated in any way by the transactions contemplated by this Agreement, and indicates the extent of any such acceleration. Company has delivered to Parent an accurate and complete copy of Company Stock Option Plans, the standard form of all stock option agreements under each of Company Stock Option Plans, and the option agreement for each Company Option that does not conform to the standard option agreement under the respective Company Stock Option Plan. There are no options outstanding to purchase shares of Company Common Stock other than Company Options and pursuant to Company’s 's ESPP. All shares of Company Common Stock subject to issuance as aforesaid in this Section 2.2(b), upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no Contracts (as defined below in Section 2.14) of any character to which Company is bound obligating Company to accelerate the vesting of any Company Option as a result of the Merger, except accelerated vesting pursuant to Company Stock Option Plans, and agreements evidencing acceleration of vesting for Company Options, all of which acceleration is described in Part 2.2(b) of the Company Disclosure Schedule. There are no outstanding or authorized stock appreciation, “"phantom stock,” " or other similar plans or Contracts with respect to Company or any of its subsidiaries. At the Effective Time, the Company Options shall be terminated without further obligation or liability of Company, Parent or the Surviving Corporation. (c) Except as set forth in Part 2.2(c) of the Company Disclosure Letter, all outstanding shares of Company Common Stock, all outstanding Company Options, and all outstanding shares of capital stock of each subsidiary of Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements and (ii) all requirements set forth in applicable agreements or instruments. For the purposes of this Agreement, “Legal Requirements” "LEGAL REQUIREMENTS" means any federal, state, local, municipal, foreign or other law of any Governmental Entity (as defined in Section 2.4), except where the failure to have been issued and granted in compliance with such securities laws and other requirements would not reasonably be expected to have a Material Adverse Effect on the Company.

Company Capitalization. (a) The authorized capital stock of the Company consists solely of 50,000,000 shares of Company Common Stock, of which there were 23,912,106 23,855,394 shares issued and outstanding as of the close of business on October 21August 9, 20032004, and 2,000,000 15,000,000 shares of preferred stock, $.01 par value $0.001 per share, none of which no shares are issued or outstanding. Each All outstanding share shares of Company Common Stock is are duly authorized, validly issued, fully paid and nonassessable and was are not subject to preemptive rights created by statute, the 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 of the date of this Agreement, there are no shares of Company Common Stock held in treasury by the Company. From and after the Effective Time, the shares of Parent Common Stock issued in violation exchange for any shares of Company Restricted Stock will, without any preemptive further act of Parent, the Company or similar rightsany other person, become subject to the restrictions, conditions and other provisions of such Company Restricted Stock, and Parent will automatically succeed to and become entitled to exercise the Company’s rights and remedies under such Company Restricted Stock. (b) As of the date close of this Agreement: business on August 9, 2004, (i) 4,068,687 5,656,162 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s Amended and Restated 1992 Employee and Consultant Stock Option and Incentive Plan; Company Options for an aggregate exercise price of $25,669,491.56, (ii) 937,875 11,921 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Employee Company Warrants; and Consultant Stock Option and Incentive Plan; (iii) 62,500 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 1995 Directors Stock Option Plan; (iv) 100,000 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Directors Stock Option Plan, as amended and; (v) 421,598 1,060,358 shares of Company Common Stock are reserved for future issuance under the Company ESPP. Part 2.2(b) of the Company Disclosure Letter Schedule sets forth the following information with respect to each Company Option and each Company Warrant outstanding as of the date of this Agreement: (i) the name of the optioneeoptionee or warrant holder; (ii) the number of shares of Company Common Stock subject to such Company OptionOption or Company Warrant; (iii) the exercise price of such Company OptionOption or Company Warrant; (iv) the date on which such Company Option or Company Warrant was granted or assumed; (v) the vesting schedule of such Company Option, and the extent to which such Company Option is vested as of the date of this Agreement; (vi) the date on which such Company Option or Company Warrant expires; , (vi) the Company Option Plan pursuant to which such Company Option was granted, and (vii) whether the exercisability of such option Company Option or Company Warrant will be accelerated in any way by the transactions contemplated by this Agreement, and indicates the extent of any such acceleration. The Company has delivered to Parent an accurate and complete copy of the Company Stock Option Plans, the standard Plans and each form of all stock option agreements under each of Company Stock Option Plans, and the option agreement for each Company Option that does not conform to the standard option agreement under the respective Company Stock Option Plan. There are no options outstanding to purchase shares of Company Common Stock other than evidencing any Company Options and pursuant to Company’s ESPPan accurate and complete copy of each Company Warrant. All shares of Company Common Stock subject to issuance as aforesaid in this Section 2.2(b)aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There Except as set forth in Part 2.2(b) of the Company Disclosure Schedule, there are no Contracts (as defined below in Section 2.14) commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option as a result of the Merger, except accelerated vesting pursuant to Company Stock Option Plans, and agreements evidencing acceleration of vesting for Company Options, all of which acceleration is described in Part 2.2(b) of the Company Disclosure Schedule. There are no outstanding or authorized stock appreciation, “phantom stock,” or other similar plans or Contracts with respect to Company or any of its subsidiaries. At the Effective Time, the Company Options shall be terminated without further obligation or liability of Company, Parent or the Surviving Corporation. (c) Except as set forth in Part 2.2(c) of the Company Disclosure Letter, all outstanding shares of Company Common Stock, all outstanding Company Options, and all outstanding shares of capital stock of each subsidiary of Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements and (ii) all requirements set forth in applicable agreements or instruments. For the purposes of this Agreement, “Legal Requirements” means any federal, state, local, municipal, foreign or other law of any Governmental Entity (as defined in Section 2.4), except where the failure to have been issued and granted in compliance with such securities laws and other requirements would not reasonably be expected to have a Material Adverse Effect on the Company.

Company Capitalization. (a) The authorized capital stock of Company consists solely of 50,000,000 210,000,000 shares of Company Common Stock, of which there were 23,912,106 36,166,801 shares issued and outstanding as of the close of business on October 21March 3, 20032000, and 2,000,000 10,000,000 shares of preferred stock, $.01 par value $0.001 per share, none of which no shares are issued or outstanding. Each All outstanding share shares of Company Common Stock is are duly authorized, validly issued, fully paid and nonassessable and was 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 the date of this Agreement, there are no shares of Company Common Stock held in treasury by the Company. From and after the Effective Time, the shares of Parent Common Stock issued in violation exchange for any shares of Company Restricted Stock will, without any preemptive further act of Parent, the Company or similar rightsany other person, become subject to the restrictions, conditions and other provisions of such Company Restricted Stock, and Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under such Company Restricted Stock. (b) As of the date close of this Agreement: business on March 3, 2000, (i) 4,068,687 4,076,097 shares of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock under Company’s Amended and Restated 1992 Employee and Consultant the Company Stock Option and Incentive Plan; Plan ("Company Options") for a -8- weighted average aggregate exercise price of approximately $75.43, (ii) 937,875 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Employee and Consultant Stock Option and Incentive Plan; (iii) 62,500 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 1995 Directors Stock Option Plan; (iv) 100,000 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Directors Stock Option Plan, as amended and; (v) 421,598 457,370 shares of Company Common Stock are reserved for future issuance under the Company ESPP, and (iii) 500,000 shares of Company Common Stock are reserved for future issuance under the Company's 401(k) Plan. Part 2.2(b) of the Company Disclosure Letter sets forth the following information with respect to each Company Option outstanding as of the date of this Agreement: (i) the name of the optionee; (ii) the number of shares of Company Common Stock subject to such Company Option; (iii) the exercise price of such Company Option; (iv) the date on which such Company Option was granted or assumed; (v) the vesting schedule of such Company Option, and the extent to which such Company Option is vested as of the date of this Agreement; (vi) the date on which such Company Option expires; expires and (viivi) whether the exercisability of such option will be accelerated in any way by the transactions contemplated by this Agreement, and indicates the extent of any such acceleration. Company has delivered made available to Parent an accurate and complete copy of the Company Stock Option Plans, Plan and the standard form of all stock option agreements under each of evidencing Company Stock Option Plans, and the option agreement for each Company Option that does not conform to the standard option agreement under the respective Company Stock Option PlanOptions. There are no options outstanding to purchase shares of Company Common Stock other than Company Options and pursuant to Company’s ESPPthe Company Stock Option Plan. All shares of Company Common Stock subject to issuance as aforesaid in this Section 2.2(b)aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no Contracts (as defined below in Section 2.14) of any character to which Company is bound obligating Company to accelerate the vesting of any Company Option as a result of the Merger, except accelerated vesting pursuant to Company Stock Option Plans, and agreements evidencing acceleration of vesting for Company Options, all of which acceleration is described in Part 2.2(b) of the Company Disclosure Schedule. There are no outstanding or authorized stock appreciation, “phantom stock,” or other similar plans or Contracts with respect to Company or any of its subsidiaries. At the Effective Time, the Company Options shall be terminated without further obligation or liability of Company, Parent or the Surviving Corporation. (c) Except as set forth in Part 2.2(c) of the Company Disclosure Letter, all All outstanding shares of Company Common Stock, all outstanding Company Options, and all outstanding shares of capital stock of each subsidiary of Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable material Legal Requirements and (ii) all material requirements set forth in applicable agreements or instruments. For the purposes of this Agreement, “"Legal Requirements” " means any federal, state, local, municipal, foreign or other law law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity (as defined in Section 2.4), except where the failure to have been issued and granted in compliance with such securities laws and other requirements would not reasonably be expected to have a Material Adverse Effect on the Company.

Company Capitalization. (a) The authorized capital stock of Company consists solely of 50,000,000 100,000,000 shares of Company Common Stock, of which there were 23,912,106 22,636,902 shares issued and outstanding as of the close of business on October 21May 16, 20032000, and 2,000,000 10,000,000 shares of preferred stock, $.01 par value $0.001 per share, none of which no shares are issued or outstanding. Each All outstanding share shares of Company Common Stock is are duly authorized, validly issued, fully paid and nonassessable and was 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 the date of this Agreement, there are no shares of Company Common Stock held in treasury by Company. From and after the Effective Time, the shares of Parent Common Stock issued in violation exchange for any shares of Company Restricted Stock will, without any preemptive further act of Parent, Company or similar rightsany other person, become subject to the restrictions, conditions and other provisions of such Company Restricted Stock, and Parent will automatically succeed to and become entitled to exercise Company's rights and remedies under such Company Restricted Stock. (b) As of the date close of this Agreement: business on May 19, 2000, (i) 4,068,687 4,258,687 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s Amended and Restated 1992 Employee and Consultant Stock Option and Incentive Plan; (ii) 937,875 shares of to purchase Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Employee and Consultant Stock Option and Incentive Plan; (iii) 62,500 shares of the Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 1995 Directors Stock Option Plan; (iv) 100,000 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Directors Stock Option Plan, as amended and; the Oberon 1990 Plan, the Oberon 1998 Plan (vcollectively, the "Company Options"), and (ii) 421,598 1,500,000 shares of Company Common Stock are reserved for future issuance under the Company ESPP. Part 2.2(b3.2(b) of the Company Disclosure Letter sets forth the following information with respect to each Company Option outstanding as of the date of this Agreement: (i) the name of the optionee; (ii) the number of shares of Company Common Stock subject to such Company Option; (iii) the exercise price of such Company Option; (iv) the date on which such Company Option was granted or assumed; (v) the vesting schedule of such Company Option, and the extent to which such Company Option is vested as of the date of this Agreement; (vi) the date on which such Company Option expires; expires and (viivi) whether the exercisability of such option will be accelerated in any way by the transactions contemplated by this Agreement, and indicates the extent of any such acceleration. Company has delivered made available to Parent an accurate and complete copy of Company Stock Option Plans, the standard form of all stock option agreements under each of Company Stock Option Plans, and the option agreement for each Company Option that does not conform to the standard option agreement under the respective Company Stock Option Plan, the Oberon 1990 Plan, the Oberon 1998 Plan, the Company ESPP and the standard forms of stock option agreements evidencing Company Options. There are no options outstanding to purchase shares of Company Common Stock other than Company Options and pursuant to Company’s ESPPthe Company Stock Option Plans. All shares of Company Common Stock subject to issuance as aforesaid in this Section 2.2(b)aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no Contracts (as defined below in Section 2.14) of any character to which Company is bound obligating Company to accelerate the vesting of any Company Option as a result of the Merger, except accelerated vesting pursuant to Company Stock Option Plans, and agreements evidencing acceleration of vesting for Company Options, all of which acceleration is described in Part 2.2(b) of the Company Disclosure Schedule. There are no outstanding or authorized stock appreciation, “phantom stock,” or other similar plans or Contracts with respect to Company or any of its subsidiaries. At the Effective Time, the Company Options shall be terminated without further obligation or liability of Company, Parent or the Surviving Corporation. (c) Except as set forth in Part 2.2(c) of the Company Disclosure Letter, all All outstanding shares of Company Common Stock, all outstanding Company Options, and all outstanding shares of capital stock of each subsidiary of Company have been issued and granted in compliance in all material respects with (i) all applicable securities laws and other applicable Legal Requirements and (ii) all requirements set forth in applicable agreements or instruments. For the purposes of this Agreement, “"Legal Requirements” " means any federal, state, local, municipal, foreign or other law law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity (as defined in Section 2.43.4), except where the failure to have been issued and granted in compliance with such securities laws and other requirements would not reasonably be expected to have a Material Adverse Effect on the Company.

Company Capitalization. (a) The authorized capital stock of Company consists solely of 50,000,000 40,000,000 shares of Company Common Stock, of which there were 23,912,106 8,890,695 shares issued and outstanding as of the close of business on October 21May 29, 2003, and 2,000,000 . All outstanding shares of preferred stock, $.01 par value per share, none of which are issued or outstanding. Each outstanding share of Company Common Stock is are duly authorized, validly issued, fully paid and nonassessable and was are not issued subject to preemptive rights created by statute, the Articles of Incorporation or Bylaws of Company or any Contract to which Company is a party or by which it is bound. As of the date of this Agreement, there are no shares of Company Common Stock held in violation of any preemptive or similar rightstreasury by Company. (b) As of the date of this Agreement: hereof, (i) 4,068,687 355,770 shares of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock under Company’s Amended the Company 1994 Option Plan, and Restated 1992 Employee and Consultant Stock Option and Incentive Plan; (ii) 937,875 1,625,620 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Employee and Consultant Stock Option and Incentive Plan; (iii) 62,500 shares of to purchase Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 1995 Directors Stock the Company 2001 Option Plan; (iv) 100,000 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Directors Stock Option Plan, as amended and; (v) 421,598 shares of Company Common Stock are reserved for future issuance under Company ESPP. Part 2.2(b) of the Company Disclosure Letter sets forth the following information with respect to each Company Option outstanding as of the date of this Agreement: (i) whether such Company Option is an In-the-Money Option, (ii) the name of the optionee; (iiiii) the number of shares of Company Common Stock subject to such Company Option; (iiiiv) the exercise price of such Company Option; (ivv) the date on which such Company Option was granted or assumed; (vvi) the vesting schedule of such Company Option, and the extent to which such Company Option is vested as of the date of this Agreement; (vivii) the date on which such Company Option expires; and (viiviii) whether the exercisability or vesting of such option will be accelerated in any way by the transactions contemplated by this Agreement, and indicates the extent of any such acceleration. Company has delivered made available to Parent an accurate and complete copy of the Company Stock Option Plans, Plans and the standard form of all stock option agreements under each of evidencing Company Stock Option Plans, and the option agreement for each Company Option that does not conform to the standard option agreement under the respective Company Stock Option PlanOptions. There are no options outstanding to purchase shares of Company Common Stock other than Company Options and pursuant to Company’s ESPPthe Company Option Plans. All shares of Company Common Stock subject to issuance as aforesaid in this Section 2.2(b)aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There Other than as set forth on Part 2.2(b) of the Company Disclosure Letter, there are no Contracts (as defined below in Section 2.14) of any character to which Company is bound obligating Company to accelerate the vesting of any Company Option as a result of the Merger, except accelerated vesting pursuant to Company Stock Option Plans, and agreements evidencing acceleration of vesting for Company Options, all of which acceleration is described in Part 2.2(b) of the Company Disclosure Schedule. There are no outstanding or authorized stock appreciation, profit participation, “phantom stock,” or other similar plans or Contracts with respect to Company or any of its subsidiaries. At the Effective Time, the Company Options shall be terminated without further obligation or liability of Company, Parent or the Surviving Corporation. (c) Except as set forth in Part 2.2(c) of the Company Disclosure Letter, all All outstanding shares of Company Common Stock, Stock and all outstanding Company Options, and all outstanding shares of capital stock of each subsidiary of Company Options have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements and (ii) all requirements set forth in applicable agreements or instruments. For the purposes of this Agreement, “Legal Requirements” means any federal, state, local, municipal, foreign or other law law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, judgment, injunction, order, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity or the Oslo Børs (as defined in Section 2.4“OSE”), except where the failure to have been issued and granted in compliance with such securities laws and other requirements would not reasonably be expected to have a Material Adverse Effect on the Company.

Company Capitalization. (a) The authorized capital stock of Company consists solely of 50,000,000 210,000,000 shares of Company Common Stock, of which there were 23,912,106 36,166,801 shares issued and outstanding as of the close of business on October 21March 3, 20032000, and 2,000,000 10,000,000 shares of preferred stock, $.01 par value $0.001 per share, none of which no shares are issued or outstanding. Each All outstanding share shares of Company Common Stock is are duly authorized, validly issued, fully paid and nonassessable and was 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 the date of this Agreement, there are no shares of Company Common Stock held in treasury by the Company. From and after the Effective Time, the shares of Parent Common Stock issued in violation exchange for any shares of Company Restricted Stock will, without any preemptive further act of Parent, the Company or similar rightsany other person, become subject to the restrictions, conditions and other provisions of such Company Restricted Stock, and Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under such Company Restricted Stock. (b) As of the date close of this Agreement: business on March 3, 2000, (i) 4,068,687 4,076,097 shares of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock under Company’s Amended and Restated 1992 Employee and Consultant the Company Stock Option and Incentive Plan; Plan ("Company Options") for a weighted average aggregate exercise price of approximately $75.43, (ii) 937,875 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Employee and Consultant Stock Option and Incentive Plan; (iii) 62,500 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 1995 Directors Stock Option Plan; (iv) 100,000 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Directors Stock Option Plan, as amended and; (v) 421,598 457,370 shares of Company Common Stock are reserved for future issuance under the Company ESPP, and (iii) 500,000 shares of Company Common Stock are reserved for future issuance under the Company's 401(k) Plan. Part 2.2(b) of the Company Disclosure Letter sets forth the following information with respect to each Company Option outstanding as of the date of this Agreement: (i) the name of the optionee; (ii) the number of shares of Company Common Stock subject to such Company Option; (iii) the exercise price of such Company Option; (iv) the date on which such Company Option was granted or assumed; (v) the vesting schedule of such Company Option, and the extent to which such Company Option is vested as of the date of this Agreement; (vi) the date on which such Company Option expires; expires and (viivi) whether the exercisability of such option will be accelerated in any way by the transactions contemplated by this Agreement, and indicates the extent of any such acceleration. Company has delivered made available to Parent an accurate and complete copy of the Company Stock Option Plans, Plan and the standard form of all stock option agreements under each of evidencing Company Stock Option Plans, and the option agreement for each Company Option that does not conform to the standard option agreement under the respective Company Stock Option PlanOptions. There are no options outstanding to purchase shares of Company Common Stock other than Company Options and pursuant to Company’s ESPPthe Company Stock Option Plan. All shares of Company Common Stock subject to issuance as aforesaid in this Section 2.2(b)aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no Contracts (as defined below in Section 2.14) of any character to which Company is bound obligating Company to accelerate the vesting of any Company Option as a result of the Merger, except accelerated vesting pursuant to Company Stock Option Plans, and agreements evidencing acceleration of vesting for Company Options, all of which acceleration is described in Part 2.2(b) of the Company Disclosure Schedule. There are no outstanding or authorized stock appreciation, “phantom stock,” or other similar plans or Contracts with respect to Company or any of its subsidiaries. At the Effective Time, the Company Options shall be terminated without further obligation or liability of Company, Parent or the Surviving Corporation. (c) Except as set forth in Part 2.2(c) of the Company Disclosure Letter, all All outstanding shares of Company Common Stock, all outstanding Company Options, and all outstanding shares of capital stock of each subsidiary of Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable material Legal Requirements and (ii) all material requirements set forth in applicable agreements or instruments. For the purposes of this Agreement, “"Legal Requirements” " means any federal, state, local, municipal, foreign or other law law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity (as defined in Section 2.4), except where the failure to have been issued and granted in compliance with such securities laws and other requirements would not reasonably be expected to have a Material Adverse Effect on the Company.

Company Capitalization. (a) The authorized capital stock of the Company consists solely of 50,000,000 7,500,000 shares of Company Common Stock, of which there were 23,912,106 2,718,664 shares issued and outstanding as of the close of business on October 21September [23], 20032004, and 2,000,000 500,000 shares of preferred stock, $.01 par value $0.001 per share, none of which no shares are issued or outstanding. Each All outstanding share shares of Company Common Stock is are duly authorized, validly issued, fully paid and nonassessable and was are not issued 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 the date of this Agreement, there are no shares of Company Common Stock held in violation of any preemptive or similar rightstreasury by the Company. (b) As of the date close of this Agreement: business on September 23, 2004, (i) 4,068,687 366,134 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s Amended and Restated 1992 Employee and Consultant Stock Option and Incentive Plan; Company Options for an aggregate exercise price of $2,600,357.81, (ii) 937,875 223,513 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Employee Company Warrants; and Consultant Stock Option and Incentive Plan; (iii) 62,500 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 1995 Directors Stock Option Plan; (iv) 100,000 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Directors Stock Option Plan, as amended and; (v) 421,598 122,997 shares of Company Common Stock are reserved for future issuance under Company the Company's 1999 Employee Stock Purchase Plan (the "COMPANY ESPP"). Part 2.2(b) of the Company Disclosure Letter Schedule sets forth the following information with respect to each Company Option and each Company Warrant outstanding as of the date of this Agreement: (i) the name of the optioneeoptionee or warrant holder; (ii) the number of shares of Company Common Stock subject to such Company OptionOption or Company Warrant; (iii) the exercise price of such Company OptionOption or Company Warrant; (iv) the date on which such Company Option or Company Warrant was granted or assumed; (v) the vesting schedule of such Company Option, and the extent to which such Company Option is vested as of the date of this Agreement; (vi) the date on which such Company Option or Company Warrant expires; , (vi) the Company Option Plan pursuant to which such Company Option was granted, and (vii) whether the exercisability of such option Company Option or Company Warrant will be accelerated in any way by the transactions contemplated by this Agreement, and indicates the extent of any such acceleration. The Company has delivered to Parent accurate and complete copies of the Company Option Plans and each form of stock option agreement evidencing any Company Options and an accurate and complete copy of Company Stock Option Plans, the standard form of all stock option agreements under each of Company Stock Option Plans, and the option agreement for each Company Option that does not conform to the standard option agreement under the respective Company Stock Option Plan. There are no options outstanding to purchase shares of Company Common Stock other than Company Options and pursuant to Company’s ESPPWarrant. All shares of Company Common Stock subject to issuance as aforesaid in this Section 2.2(b)aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There Except as set forth in Part 2.2(b) of the Company Disclosure Schedule, there are no Contracts (as defined below in Section 2.14) commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option or Company Warrant as a result of the Merger, except accelerated vesting pursuant to Company Stock Option Plans, and agreements evidencing acceleration of vesting for Company Options, all of which acceleration is described in Part 2.2(b) of the Company Disclosure Schedule. There are no outstanding or authorized stock appreciation, “phantom stock,” or other similar plans or Contracts with respect to Company or any of its subsidiaries. At the Effective Time, the Company Options shall be terminated without further obligation or liability of Company, Parent or the Surviving Corporation. (c) Except as set forth in Part 2.2(c) of the Company Disclosure Letter, all All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each subsidiary of Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable material Legal Requirements and (ii) all material requirements set forth in applicable agreements or instruments. For the purposes of this Agreement, “Legal Requirements” "LEGAL REQUIREMENTS" means any federal, state, local, municipal, foreign or other law law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity court, administrative agency or commission or other governmental authority or instrumentality, foreign or domestic (as defined in Section 2.4each, a "GOVERNMENTAL ENTITY"), except where the failure to have been issued and granted in compliance with such securities laws and other requirements would not reasonably be expected to have a Material Adverse Effect on the Company.

Company Capitalization. (a) The authorized capital stock of the Company consists solely of 50,000,000 7,500,000 shares of Company Common Stock, of which there were 23,912,106 2,718,664 shares issued and outstanding as of the close of business on October 21September 23, 20032004, and 2,000,000 500,000 shares of preferred stock, $.01 par value $0.001 per share, none of which no shares are issued or outstanding. Each All outstanding share shares of Company Common Stock is are duly authorized, validly issued, fully paid and nonassessable and was are not issued 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 the date of this Agreement, there are no shares of Company Common Stock held in violation of any preemptive or similar rightstreasury by the Company. (b) As of the date close of this Agreement: business on September 23, 2004, (i) 4,068,687 366,134 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s Amended and Restated 1992 Employee and Consultant Stock Option and Incentive Plan; Company Options for an aggregate exercise price of $2,600,357.81, (ii) 937,875 223,513 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Employee Company Warrants; and Consultant Stock Option and Incentive Plan; (iii) 62,500 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 1995 Directors Stock Option Plan; (iv) 100,000 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Directors Stock Option Plan, as amended and; (v) 421,598 122,997 shares of Company Common Stock are reserved for future issuance under the Company’s 1999 Employee Stock Purchase Plan (the “Company ESPP”). Part 2.2(b) of the Company Disclosure Letter Schedule sets forth the following information with respect to each Company Option and each Company Warrant outstanding as of the date of this Agreement: (i) the name of the optioneeoptionee or warrant holder; (ii) the number of shares of Company Common Stock subject to such Company OptionOption or Company Warrant; (iii) the exercise price of such Company OptionOption or Company Warrant; (iv) the date on which such Company Option or Company Warrant was granted or assumed; (v) the vesting schedule of such Company Option, and the extent to which such Company Option is vested as of the date of this Agreement; (vi) the date on which such Company Option or Company Warrant expires; , (vi) the Company Option Plan pursuant to which such Company Option was granted, and (vii) whether the exercisability of such option Company Option or Company Warrant will be accelerated in any way by the transactions contemplated by this Agreement, and indicates the extent of any such acceleration. The Company has delivered to Parent accurate and complete copies of the Company Option Plans and each form of stock option agreement evidencing any Company Options and an accurate and complete copy of Company Stock Option Plans, the standard form of all stock option agreements under each of Company Stock Option Plans, and the option agreement for each Company Option that does not conform to the standard option agreement under the respective Company Stock Option Plan. There are no options outstanding to purchase shares of Company Common Stock other than Company Options and pursuant to Company’s ESPPWarrant. All shares of Company Common Stock subject to issuance as aforesaid in this Section 2.2(b)aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There Except as set forth in Part 2.2(b) of the Company Disclosure Schedule, there are no Contracts (as defined below in Section 2.14) commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option or Company Warrant as a result of the Merger, except accelerated vesting pursuant to Company Stock Option Plans, and agreements evidencing acceleration of vesting for Company Options, all of which acceleration is described in Part 2.2(b) of the Company Disclosure Schedule. There are no outstanding or authorized stock appreciation, “phantom stock,” or other similar plans or Contracts with respect to Company or any of its subsidiaries. At the Effective Time, the Company Options shall be terminated without further obligation or liability of Company, Parent or the Surviving Corporation. (c) Except as set forth in Part 2.2(c) of the Company Disclosure Letter, all All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each subsidiary of Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable material Legal Requirements and (ii) all material requirements set forth in applicable agreements or instruments. For the purposes of this Agreement, “Legal Requirements” means any federal, state, local, municipal, foreign or other law law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any court, administrative agency or commission or other governmental authority or instrumentality, foreign or domestic (each, a “Governmental Entity (as defined in Section 2.4Entity”), except where the failure to have been issued and granted in compliance with such securities laws and other requirements would not reasonably be expected to have a Material Adverse Effect on the Company.

Company Capitalization. (a) The authorized capital stock of Company consists solely of 50,000,000 90,000,000 shares of Company Common Stock, of which there were 23,912,106 3,800,320 shares issued and outstanding as of the close of business on October 21March 31, 2003, 2004 and 2,000,000 10,000,000 shares of preferred stock, $.01 par value $0.001 per share, none of which are there were no shares issued or outstandingand outstanding as of March 31, 2004. Each All outstanding share shares of Company Common Stock is are duly authorized, validly issued, fully paid and nonassessable and was are not issued subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of Company or any Contract to which Company is a party or by which it is bound. As of the date of this Agreement, there are 216,844 shares of Company Common Stock held in violation of any preemptive or similar rightstreasury by Company. (b) As of the date of this Agreement: hereof, (i) 4,068,687 6,837 shares of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock under Company’s Amended and Restated 1992 Employee and Consultant Stock the 1997 Option and Incentive Plan; , (ii) 937,875 668,117 shares of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock under Company’s 2002 Employee the 1999 Option Plan, and Consultant Stock Option and Incentive Plan; (iii) 62,500 11,900 shares of Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 1995 Directors Stock Option Plan; (iv) 100,000 shares of to purchase Company Common Stock are subject to issuance pursuant to outstanding options under Company’s 2002 Directors Stock the EMAX Option Plan, as amended and; (v) 421,598 shares of Company Common Stock are reserved for future issuance under Company ESPP. Part 2.2(b) of the Company Disclosure Letter sets forth the following information with respect to each Company Stock Option outstanding as of the date of this Agreement: (i) the name of the optionee; (ii) the number of shares of Company Common Stock subject to such Company Stock Option; (iii) the exercise price of such Company Stock Option; (iv) the date on which such Company Stock Option was granted or assumedgranted; (v) the vesting schedule of such Company Stock Option, and the extent to which such Company Stock Option is vested as of the date of this Agreement; (vi) the date on which such Company Stock Option expires; and (vii) whether the exercisability or vesting of such option Company Stock Option will be accelerated in any way by the transactions contemplated by this Agreement, and indicates the extent of any such acceleration. Notwithstanding anything else set forth in this Agreement or the Disclsoure Schedules, the Company represents and warrants that (A) the Company can take the actions necessary to effect the transactions contemplated by Section 1.6(d) above, (B) only Company Stock Options which are vested may be exercised, (C) with respect to Company Stock Options for which there is an Option Payment, there is only 12 months of additional acceleration which will occur or will be authorized to occur in connection with or as a result of the Merger, and (D) all such actions are allowable under the Company Stock Option Plans and all stock option agreements outstanding under such plans. Company has delivered made available to Parent an accurate and complete copy of the Company Stock Option Plans, Plans and the standard form of all stock option agreements under each of evidencing Company Stock Option Plans, and the option agreement for each Company Option that does not conform to the standard option agreement under the respective Company Stock Option PlanOptions. There are no options outstanding to purchase shares of Company Common Stock other than Company Options and pursuant to Company’s ESPPthe Company Stock Option Plans. All shares of Company Common Stock subject to issuance as aforesaid in this Section 2.2(b)aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There Other than as set forth on Part 2.2(b) of the Company Disclosure Letter, there are no Contracts (as defined below in Section 2.14) of any character to which Company is bound obligating Company to accelerate the vesting of any Company Stock Option as a result of the Merger, except accelerated vesting pursuant to Company Stock Option Plans, and agreements evidencing acceleration of vesting for Company Options, all of which acceleration is described in . Other than as set forth on Part 2.2(b) of the Company Disclosure Schedule. There Letter, there are no outstanding or authorized stock appreciation, stock purchase, profit participation, “phantom stock,” or other similar plans or Contracts with respect to Company or any of its subsidiaries. At the Effective Time, the Company Options shall be terminated without further obligation or liability of Company, Parent or the Surviving Corporation. (c) Except as set forth in Part 2.2(c) of the Company Disclosure Letter, all All outstanding shares of Company Common Stock, all outstanding Company Stock Options, and all outstanding shares of capital stock of each subsidiary of Company have been issued and granted in compliance in all material respects with (i) all applicable securities laws and other applicable Legal Requirements and (ii) all requirements set forth in applicable agreements or instruments. For the purposes of this Agreement, “Legal Requirements” means any federal, state, local, municipal, foreign or other law law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, judgment, injunction, order, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity or the Nasdaq National Market (as defined in Section 2.4“NNM”), except where the failure to have been issued and granted in compliance with such securities laws and other requirements would not reasonably be expected to have a Material Adverse Effect on the Company.