Common use of Company Stock Clause in Contracts

Company Stock. (i) The authorized capital stock of the Company consists of 400,000,000 Shares and no shares of preferred stock. As of the close of business on December 14, 2011 (the “Measurement Date”), (A) 56,663,030 Shares (excluding treasury shares) were issued and outstanding, (B) 0 Shares were held by the Company in treasury and 112,607 Shares were owned by the Company’s wholly-owned Subsidiaries, and (C) 11,394,674 Shares were reserved for issuance pursuant to the Company Stock Plans (of which 4,302,373 Shares were subject to outstanding Company Stock Options and 2,236,848 Shares were subject to outstanding RSUs). (ii) All outstanding shares of capital stock of the Company are, and all shares reserved for issuance will be when issued, duly authorized, validly issued, fully paid and nonassessable, and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the FBCA, the Company Charter, the Company Bylaws or any Contract to which the Company is a party or is otherwise bound. Other than as set forth in paragraph (i) above, no shares of capital stock of the Company are owned by any Subsidiary of the Company. All outstanding shares of capital stock and other voting securities or equity interests of each Subsidiary of the Company have been duly authorized and validly issued, are fully paid, nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right. All shares of capital stock and other voting securities or equity interests of each such Subsidiary are owned, directly or indirectly, by the Company, free and clear of all pledges, claims, liens, charges, options, rights of first refusal, encumbrances and security interests of any kind or nature whatsoever (including any limitation on voting, sale, transfer or other disposition or exercise of any other attribute of ownership) (collectively, “Liens”). (iii) Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations having the right to vote (or convertible into, or exchangeable or exercisable for, securities having the right to vote) with the shareholders of the Company or such Subsidiary on any matter. Except as set forth above in this paragraph (a) and except for changes since the close of business on the Measurement Date resulting from the exercise of Company Stock Options described in Section 3.2(b), there are no outstanding (A) shares of capital stock or other voting securities or equity interests of the Company, (B) securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock of the Company or other voting securities or equity interests of the Company or any of its Subsidiaries, (C) stock appreciation rights, “phantom” stock rights, performance units, interests in or rights to the ownership or earnings of the Company or any of its Subsidiaries or other equity equivalent or equity-based awards or rights, (D) subscriptions, options, warrants, calls, commitments, Contracts or other rights to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any shares of capital stock of the Company or any of its Subsidiaries, voting securities, equity interests or securities convertible into or exchangeable or exercisable for capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries or rights or interests described in the preceding clause (C), or (E) obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, grant, deliver or sell, or cause to be issued, granted, delivered or sold, any such securities. (iv) There are no shareholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or to which the Company has knowledge with respect to the holding, voting, registration, redemption, repurchase or disposition of, or that restricts the transfer of, any capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries.

Company Stock. (i) The authorized capital stock of the Company consists of: (i) 80,000,000 shares of 400,000,000 Shares Company Common Stock, and no (ii) 5,000,000 shares of preferred stockstock (“Company Preferred Stock”). As of the close of business on December 14September 4, 2011 (the “Measurement Date”)2009, (Aa) 56,663,030 Shares (excluding treasury shares) 9,596,398 shares of Company Common Stock were issued and outstanding, (Bb) 0 Shares no shares of Company Preferred Stock were held by the issued and outstanding, (c) 8,300,000 shares of Company in treasury and 112,607 Shares were owned by the Company’s wholly-owned Subsidiaries, and (C) 11,394,674 Shares Common Stock were reserved for issuance pursuant to upon the exercise of options issued or issuable under the Company Stock Plans Plans, (d) 1,146,573 shares of which 4,302,373 Shares Company Common Stock were subject to outstanding reserved for issuance under stock options granted outside of the Company Stock Options Plans, (e) 1,241,334 shares of Company Common Stock were reserved for issuance under Company Warrants, (f) 2,098,485 shares of Company Common Stock were reserved for issuance under the terms of convertible promissory notes, and 2,236,848 Shares (g) no shares of Company Common Stock were subject to outstanding RSUs). (ii) held in treasury. All of the outstanding shares of capital stock of the Company are, and all shares reserved for issuance will be when issued, each Subsidiary (i) have been duly authorized, validly issued, and are fully paid and nonassessable, (ii) are, and not subject to when issued were, free of preemptive or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the FBCA, the Company Charter, the Company Bylaws or any Contract to which the Company is a party or is otherwise bound. Other than as set forth in paragraph rights and (iiii) above, no shares of capital stock of the Company are owned by any Subsidiary of the Company. All outstanding shares of capital stock (legally and other voting securities or equity interests of each Subsidiary of the Company have been duly authorized and validly issued, are fully paid, nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right. All shares of capital stock and other voting securities or equity interests of each such Subsidiary are owned, directly or indirectly, by the Company, beneficially) free and clear of any and all pledgesLiens, claimsencumbrances, liensequities, chargesand restrictions on transferability (other than those imposed by the Securities Act and the state securities or “Blue Sky” Laws) or voting. As of the date hereof, options, rights of first refusal, encumbrances and security interests of any kind or nature whatsoever (including any limitation on voting, sale, transfer or other disposition or exercise of any other attribute of ownership) (collectively, “Liens”). (iii) Neither than the Company nor Stock Options and the Company Warrants, there are no shares of Company Common Stock authorized and reserved for issuance, the Company does not have any of its Subsidiaries has Rights issued or outstanding with respect to Company Stock, and the Company does not have any bondscommitment to authorize, debenturesissue or sell any Company Stock or Rights, notes or other obligations having the right except pursuant to vote (or convertible into, or exchangeable or exercisable for, securities having the right to votethis Agreement. Section 4.2(e) with the shareholders of the Company Disclosure Schedule sets forth a list of the holders of outstanding Company Stock Options and Company Warrants, the date that each such Company Stock Option or Company Warrant was granted, the number of shares of Company Common Stock subject to each such Subsidiary on any matterCompany Stock Option or Company Warrant, the vesting schedule and expiration date of each such Company Stock Option or Company Warrant and the price at which each such Company Stock Option or Company Warrant may be exercised. Except as set forth above in this paragraph (a) and except for changes since the close of business on the Measurement Date resulting from the exercise of Company Stock Options described in Section 3.2(b), there are no outstanding (A4.2(e) shares of capital stock or other voting securities or equity interests of the Company, (B) securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock of the Company or other voting securities or equity interests of the Company or any of its SubsidiariesDisclosure Schedule, (C) stock appreciation rights, “phantom” stock rights, performance units, interests in or rights to the ownership or earnings of the Company or any of its Subsidiaries or other equity equivalent or equity-based awards or rights, (D) subscriptions, no options, warrants, calls, commitments, Contracts warrants or other rights to acquire purchase from the Company or any of its SubsidiariesSubsidiary, agreements or other obligations of the Company or any of its Subsidiaries Subsidiary to issueissue or other rights to convert any obligation into, or exchange any securities for, shares of capital stock of or ownership interests in the Company or any Subsidiary are outstanding; and, there is no agreement, understanding or arrangement among the Company or any Subsidiary and each of their respective stockholders or members or any other Person relating to the ownership or disposition of any capital stock of the Company or any Subsidiary or the election of its Subsidiaries, voting securities, equity interests directors or securities convertible into or exchangeable or exercisable for capital stock or other voting securities or equity interests managers of the Company or any of its Subsidiaries Subsidiary or rights or interests described in the preceding clause (C), or (E) obligations governance of the Company Company’s or any of its Subsidiaries to repurchaseSubsidiary’s affairs, redeem or otherwise acquire any and such securities or to issue, grant, deliver or sell, or cause to be issued, granted, delivered or sold, any such securities. (iv) There are no shareholder agreements, voting trusts understandings and arrangements, if any, will not be breached or other agreements or understandings to which violated as a result of the Company or any of its Subsidiaries is a party or to which the Company has knowledge with respect to the holding, voting, registration, redemption, repurchase or disposition execution and delivery of, or that restricts the transfer of, any capital stock or other voting securities or equity interests consummation of the Company or any of its Subsidiariestransactions contemplated by this Agreement.

Company Stock. (ia) The authorized capital stock of the Company consists of 400,000,000 Shares and no 5,000,000 shares of preferred stockCompany Preferred Stock and 65,000,000 shares of Company Common Stock. As of the close of business on December 14June 3, 2011 (the “Measurement Date”)2010, (A1) 56,663,030 Shares (excluding treasury shares) no shares of Company Preferred Stock were issued and outstanding, (B2) 0 Shares 41,252,888 shares of Company Common Stock were held by issued and outstanding, (3) 2,536,669 shares of Company Common Stock were issuable upon exercise of Company Stock Options under the Company in treasury Stock Plans, (4) 20,000 shares of Company Common Stock were issuable upon exercise of the 2008 Consultant Options and 112,607 (5) no shares of Company Common Stock were issuable upon exercise of any other Rights other than those under the Company Stock Plans and the 2008 Consultant Options. (b) The outstanding Shares were owned by the Company’s wholly-owned Subsidiarieshave been duly authorized and are validly issued and outstanding, fully paid and nonassessable, and not subject to preemptive rights (C) 11,394,674 Shares and were reserved not issued in violation of any preemptive rights). Except as set forth above and except for issuance shares issuable pursuant to the Company Stock Plans (and the 2008 Consultant Options, there are no shares of which 4,302,373 Shares were subject Company Common Stock or Company Preferred Stock reserved for issuance, the Company does not have any Rights outstanding with respect to Company Common Stock or Company Preferred Stock and the Company does not have any commitment to authorize, issue or sell any Company Common Stock, Company Preferred Stock or Rights, except pursuant to this Agreement, outstanding Company Stock Options Options, the Company Stock Plans and 2,236,848 Shares were the 2008 Consultant Options. The Company has no commitment to redeem, repurchase or otherwise acquire any shares of Company Common Stock. There are no shareholder agreements, voting trusts or other arrangements or understandings to which the Company is a party with respect to the voting of stock or other equity interests of the Company. All shares of Company Common Stock subject to outstanding RSUs). (ii) All outstanding shares of capital stock of issuance under the Company areStock Plans, upon issuance on the terms and all shares reserved for issuance will conditions specified in the instruments pursuant to which they are issuable, would be when issued, duly authorized, validly issued, fully paid and nonassessable, . True and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision complete copies of the FBCA, the Company Charter, the Company Bylaws or any Contract to which the Company is a party or is otherwise bound. Other than as set forth in paragraph (i) above, no shares of capital stock of the Company are owned by any Subsidiary of the Company. All outstanding shares of capital stock and other voting securities or equity interests of each Subsidiary of the Company have been duly authorized and validly issued, are fully paid, nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right. All shares of capital stock and other voting securities or equity interests of each such Subsidiary are owned, directly or indirectly, by the Company, free and clear forms of all pledges, claims, liens, charges, options, rights of first refusal, encumbrances and security interests of any kind or nature whatsoever (including any limitation on voting, sale, transfer or other disposition or exercise of any other attribute of ownership) (collectively, “Liens”). (iii) Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations having the right agreements relating to vote (or convertible into, or exchangeable or exercisable for, securities having the right to vote) with the shareholders of the Company or such Subsidiary on any matter. Except as set forth above in this paragraph (a) and except for changes since the close of business on the Measurement Date resulting from the exercise of Company Stock Options described in Section 3.2(b), there are no outstanding (A) shares of capital stock or other voting securities or equity interests of the Company, (B) securities of issued under the Company or any Stock Plans have been made available to Parent, such forms of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock of the Company or other voting securities or equity interests of the Company or any of its Subsidiaries, (C) stock appreciation rights, “phantom” stock rights, performance units, interests in or rights to the ownership or earnings of the Company or any of its Subsidiaries or other equity equivalent or equity-based awards or rights, (D) subscriptions, options, warrants, calls, commitments, Contracts or other rights to acquire agreements are not materially different from the agreements evidencing such Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any shares of capital stock of the Company or any of its Subsidiaries, voting securities, equity interests or securities convertible into or exchangeable or exercisable for capital stock or Stock Options (other voting securities or equity interests of the Company or any of its Subsidiaries or rights or interests described in the preceding clause (C), or (E) obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, grant, deliver or sell, or cause to be issued, granted, delivered or sold, any such securities. (iv) There are no shareholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or to which the Company has knowledge than with respect to the holding, voting, registration, redemption, repurchase or disposition of, or that restricts the transfer of, any capital stock or other voting securities or equity interests name of the holder, the per share exercise price, the number of shares subject to such Company Stock Options and the applicable vesting schedule), and such agreements and instruments have not been amended, modified or supplemented, and the Company has no obligations under any of its Subsidiariescontract or agreement to amend, modify or supplement such agreements in any case from the forms made available to Parent (or the actual agreements evidencing such Company Stock Options).

Company Stock. (i1) The authorized capital stock of the Company consists of 400,000,000 Shares and no 5,000,000 shares of preferred stockCompany Preferred Stock and 14,000,000 shares of Company Common Stock. As of the close of business on December 14September 13, 2011 (the “Measurement Date”)2010, (A) 56,663,030 5,782,687 shares of Company Common Stock (including 197,440 Company Restricted Shares, whether or not certificates representing such Company Restricted Shares (excluding treasury shareshave been issued) were issued and outstanding, outstanding and (B) 0 Shares 589,178 shares of Company Common Stock were held by issuable upon exercise of Company Stock Options under the Company in treasury and 112,607 Shares were owned by the Company’s wholly-owned SubsidiariesStock Plan. There are (i) no shares of Company Preferred Stock issued or outstanding, and (Cii) 11,394,674 Shares were reserved for issuance pursuant to no shares of Company Common Stock issuable upon exercise of any Rights under the Company Stock Plans Plan (of which 4,302,373 Shares were subject to outstanding Company Stock Options and 2,236,848 Shares were subject to outstanding RSUs)except as described in clause (B) above) or otherwise. (ii2) All The outstanding shares of capital stock of the Company Shares are, and all shares reserved for issuance Shares which may be issued pursuant to the exercise of Company Stock Options will be be, when issuedissued in accordance with the respective terms thereof, (A) duly authorized, authorized and validly issuedissued and outstanding, fully paid and nonassessable, and not subject to or issued in violation of any preemptive rights, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the FBCADGCL, the Company Charter, the Company Bylaws Company’s Constituent Documents or any Contract contract or commitment to which the Company is a party or is otherwise bound. Other than as bound and (B) issued in material compliance with all applicable Laws, including federal and state securities laws, and all requirements set forth in paragraph (i) above, no shares applicable contracts governing the issuance of capital stock of the Company are owned by any Subsidiary of the Company. All outstanding shares of capital stock and other voting securities or equity interests of each Subsidiary of the Company have been duly authorized and validly issued, are fully paid, nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right. All shares of capital stock and other voting securities or equity interests of each such Subsidiary are owned, directly or indirectly, by the Company, free and clear of all pledges, claims, liens, charges, options, rights of first refusal, encumbrances and security interests of any kind or nature whatsoever (including any limitation on voting, sale, transfer or other disposition or exercise of any other attribute of ownership) (collectively, “Liens”). (iii) Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations having the right to vote (or convertible into, or exchangeable or exercisable for, securities having the right to vote) with the shareholders of the Company or such Subsidiary on any matterShares. Except as set forth above in this paragraph (a) and except for changes since the close of business on the Measurement Date resulting from the exercise of Company Stock Options described in Section 3.2(b3.01(e)(1), there are no outstanding (A) shares of capital stock Company Common Stock or other voting securities Company Preferred Stock reserved for issuance, the Company does not have any Rights outstanding with respect to Company Common Stock or equity interests Company Preferred Stock and the Company does not have any commitment to authorize, issue, sell or otherwise cause to become outstanding any Company Common Stock, Company Preferred Stock or Rights, except pursuant to Company Stock Options and Company Restricted Shares outstanding as of the Companydate of this Agreement all of which Company Stock Options and Company Restricted Shares have been issued pursuant to the terms of the Company Stock Plan. There are no outstanding stock appreciation, (B) securities of phantom stock, profit participation or similar rights with respect to the Company or any of its Subsidiaries or other equity interests in the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or exercisable equity interests. Except for shares agreements with respect to the equity ownership of capital stock of HearingLife Dubbo in Australia and Colorado Hearing, LLC, in the United States, there are no stockholder agreements, voting trusts or other arrangements or understandings to which the Company is a party, or of which the Company has Knowledge, with respect to the voting of stock or other voting securities or equity interests of the Company or any of its Subsidiaries. The Company has in effect a stockholder rights plan, (C) stock appreciation rights, “phantom” stock rights, performance units, interests in or rights with respect to the ownership Company. (3) No bonds, debentures, notes or earnings other indebtedness of the Company or any of its Subsidiaries having the right to vote are issued or other equity equivalent or equity-based awards or rightsoutstanding, (D) subscriptions, options, warrants, calls, commitments, Contracts or other rights to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any shares of capital stock of the Company or any of its Subsidiaries, voting securities, equity interests or securities convertible into or exchangeable or exercisable for capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries or rights or interests described in the preceding clause (C), or (E) and there are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, grant, deliver or sell, or cause to be issued, granted, delivered or sold, any such securities. (iv) There are no shareholder agreements, voting trusts or other agreements or understandings to which the Company or any shares of its Subsidiaries is a party or to which the Company has knowledge with respect to the holding, voting, registration, redemption, repurchase or disposition of, or that restricts the transfer of, any capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries. (4) Section 3.01(e)(4) of the Disclosure Schedule sets forth a complete and accurate list, as of September 13, 2010, of (A) all outstanding Company Stock Options under the Company Stock Plan (or otherwise), the grant date of such Company Stock Options the number of Shares subject thereto, the exercise or grant prices (if applicable) and the names of the holders thereof and (B) all Company Restricted Shares under the Company Stock Plan (or otherwise), the grant date of such award and the names of the holders thereof. All (i) Company Stock Options and (ii) Company Restricted Shares, other than Company Stock Options and Company Restricted Shares granted or awarded to directors, are evidenced by stock option agreements, restricted stock purchase agreements or other award agreements, in each case in the forms set forth in Section 3.01(e)(4) of the Disclosure Schedule or filed as an exhibit to a Company Regulatory Filing prior to the date of this Agreement, and except as set forth in Section 3.01(e)(4) of the Disclosure Statement, no stock option agreement, restricted stock purchase agreement or other award agreement contains any terms that are materially inconsistent with or in addition to such forms. Each grant of a Company Stock Option was duly authorized no later than the date on which the grant of such Company Stock Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the Company Board (or a duly constituted and authorized committee thereof), and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, each such grant was made in accordance with the terms of the Company Stock Plan, the Exchange Act and all other applicable Laws, the per share exercise price of each Company Stock Option was equal to or greater than the fair market value of a share of Company Common Stock on the applicable Grant Date and each such grant was properly accounted for in accordance with GAAP in the Financial Statements and disclosed in the Company Regulatory Filings in accordance with the Exchange Act and all other applicable Laws. To the Company’s Knowledge, the Company has not granted, and there is no and has been no Company policy or practice to grant, Company Stock Options prior to, or otherwise coordinate the grant of Company Stock Options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects. Each Company Stock Option and each Company Restricted Share may, by its terms, be treated at the Effective Time as set forth in Section 2.09. (5) The Company Board has not declared any dividend or distribution with respect to the Company Common Stock, the record or payment date for which is on or after the date of this Agreement.

Company Stock. (i) The As of the date hereof, the authorized capital stock of the Company consists solely of 400,000,000 Shares 40,000,000 shares of Company Common Stock, of which not more than 17,023,320 shares were outstanding as of August 8, 2006, and 10,000,000 shares of Company Preferred Stock, of which no shares of preferred stock. As were outstanding as of the close of business on December 14, 2011 (the “Measurement Date”), (A) 56,663,030 Shares (excluding treasury shares) were issued and outstanding, (B) 0 Shares were held by the Company in treasury and 112,607 Shares were owned by the Company’s wholly-owned Subsidiaries, and (C) 11,394,674 Shares were reserved for issuance pursuant to the Company Stock Plans (of which 4,302,373 Shares were subject to outstanding Company Stock Options and 2,236,848 Shares were subject to outstanding RSUs). (ii) All date hereof. The outstanding shares of capital stock of the Company are, Common Stock have been duly authorized and all shares reserved for issuance will be when issued, duly authorized, are validly issued, fully paid and nonassessable, and not subject to or no preemptive rights (and were not issued in violation of any purchase option, call option, right preemptive rights). There are no shares of first refusal, preemptive right, subscription right or any similar right under any provision of the FBCACompany Stock reserved for issuance, the Company Charterdoes not have any Rights issued or outstanding with respect to Company Stock, and the Company Bylaws does not have any commitment to authorize, issue or sell any Contract Company Stock or Rights, except pursuant to this Agreement. The Company has Previously Disclosed a list of each Compensation Plan under which the Company is a party or is otherwise bound. Other than as set forth in paragraph (i) above, no any shares of capital stock of the Company are owned by or any Subsidiary Rights with respect thereto have been or may be awarded or issued (“Company Stock Plans”). As of the Company. All outstanding August 8, 2006, no more than 1,586,218 shares of capital stock and other voting securities or equity interests Company Common Stock were issuable upon exercise of each Subsidiary of Company Stock Options under the Company have been duly authorized and validly issuedStock Plans. Except as described in the immediately preceding sentence, are fully paid, nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right. All shares of capital stock and other voting securities or equity interests of each such Subsidiary are owned, directly or indirectly, by the Company, free and clear of all pledges, claims, liens, charges, options, rights of first refusal, encumbrances and security interests of any kind or nature whatsoever (including any limitation on voting, sale, transfer or other disposition or exercise of any other attribute of ownership) (collectively, “Liens”). (iii) Neither the Company nor has no Company Common Stock authorized for issuance pursuant to any Company Stock Plans. The Company has Previously Disclosed the weighted average exercise price for the Company Stock Options under each of its Subsidiaries has Company Stock Plans. The Company does not have outstanding any bonds, debentures, notes or other obligations having the holders of which have the right to vote (or which are convertible into, or exchangeable into or exercisable for, for securities having the right to vote) with the shareholders of the Company or such Subsidiary on any matter. Except as set forth above in this paragraph (a) and except for changes since the close of business on the Measurement Date resulting from the exercise of All stock options or similar Rights granted under any Company Stock Options described Plan (1) have been granted in Section 3.2(b)compliance with the terms of applicable law, there are no outstanding (A) shares of capital stock or other voting securities or equity interests of the Companyapplicable Company Stock Plans and on a basis consistent with past practice, (B) securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock of the Company or other voting securities or equity interests of the Company or any of its Subsidiaries, (C) stock appreciation rights, “phantom” stock rights, performance units, interests in or rights to the ownership or earnings of the Company or any of its Subsidiaries or other equity equivalent or equity-based awards or rights, (D) subscriptions, options, warrants, calls, commitments, Contracts or other rights to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any shares of capital stock of the Company or any of its Subsidiaries, voting securities, equity interests or securities convertible into or exchangeable or exercisable for capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries or rights or interests described in the preceding clause (C), or (E) obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, grant, deliver or sell, or cause to be issued, granted, delivered or sold, any such securities. (iv) There are no shareholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or to which the Company has knowledge including with respect to value, size and timing, (2) have been reflected on the holdingfinancial statements included in the Company’s SEC Documents in accordance with generally accepted accounting principles, voting, registration, redemption, repurchase and (3) have (or disposition of, with respect to such options or that restricts the transfer of, any capital stock or other voting securities or equity interests Rights which have been exercised as of the date of this Agreement, had) a per share exercise price at least equal to the fair market value of a share of Company Common Stock as of the date the option or any of its SubsidiariesRight was granted.

Company Stock. (i) The authorized capital stock of the Company consists of 400,000,000 Shares and no (i) 7,500,000 shares of Company Common Stock, (ii) 1,000,000 shares of preferred stockstock (the "Company Preferred Stock"), and (iii) 16,500,000 shares of undesignated stock (the "Company Undesignated Stock"). As of the close of business on December 14May 30, 2011 (the “Measurement Date”)2000, (Aa) 56,663,030 Shares (excluding treasury shares) 4,891,191 shares of Company Common Stock were issued and outstanding, (Bb) 0 Shares no shares of Company Preferred Stock were held by the issued and outstanding, (c) no shares of Company in treasury Undesignated Stock were issued and 112,607 Shares were owned by the Company’s wholly-owned Subsidiariesoutstanding, and (Cd) 11,394,674 Shares 670,762 shares of Company Common Stock were reserved for issuance pursuant to under the Company's ESPP, (e) 625,357 shares of Company Common Stock were reserved for issuance under the Company's 1990 and 1997 Stock Option Plans and (f) 325,000 shares of which 4,302,373 Shares Company Common Stock were subject to outstanding reserved for issuance under Company Stock Options and 2,236,848 Shares were subject to outstanding RSUs). (ii) All Warrants. The outstanding shares of capital stock of the Company are, Common Stock have been duly authorized and all shares reserved for issuance will be when issued, duly authorized, are validly issuedissued and outstanding, fully paid and nonassessable, and not subject to or no preemptive rights (and were not issued in violation of any purchase option, call option, right of first refusal, subscriptive or preemptive right, subscription right or any similar right under any provision rights). As of the FBCAdate hereof, other than the Company Charter, the Company Bylaws or any Contract to which the Company is a party or is otherwise bound. Other than as set forth in paragraph (i) above, no shares of capital stock of the Company are owned by any Subsidiary of the Company. All outstanding shares of capital stock and other voting securities or equity interests of each Subsidiary of the Company have been duly authorized and validly issued, are fully paid, nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right. All shares of capital stock and other voting securities or equity interests of each such Subsidiary are owned, directly or indirectly, by the Company, free and clear of all pledges, claims, liens, charges, options, rights of first refusal, encumbrances and security interests of any kind or nature whatsoever (including any limitation on voting, sale, transfer or other disposition or exercise of any other attribute of ownership) (collectively, “Liens”). (iii) Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations having the right to vote (or convertible into, or exchangeable or exercisable for, securities having the right to vote) with the shareholders of the Company or such Subsidiary on any matter. Except as set forth above in this paragraph (a) and except for changes since the close of business on the Measurement Date resulting from the exercise of Company Stock Options described in Section 3.2(b)and the Company Warrants, there are no outstanding (A) shares of capital stock Company Common Stock authorized and reserved for issuance, the Company does not have any Rights issued or other voting securities outstanding with respect to Company Stock, and the Company does not have any commitment to authorize, issue or equity interests of the Companysell any Company Stock or Rights, (Bexcept pursuant to this Agreement. Section 4.3(e) securities of the Company Disclosure Schedule sets forth a list of the holders of outstanding Company Stock Options and Company Warrants, the date that each such Company Stock Option or any Company Warrant was granted, the number of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock Company Common Stock subject to each such Company Stock Option or Company Warrant, the expiration date of each such Company Stock Option or Company Warrant and the price at which each such Company Stock Option or other voting securities or equity interests of the Company or any of its Subsidiaries, (C) stock appreciation rights, “phantom” stock rights, performance units, interests in or rights to the ownership or earnings of the Company or any of its Subsidiaries or other equity equivalent or equity-based awards or rights, (D) subscriptions, options, warrants, calls, commitments, Contracts or other rights to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any shares of capital stock of the Company or any of its Subsidiaries, voting securities, equity interests or securities convertible into or exchangeable or exercisable for capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries or rights or interests described in the preceding clause (C), or (E) obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, grant, deliver or sell, or cause to Warrant may be issued, granted, delivered or sold, any such securitiesexercised. (iv) There are no shareholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or to which the Company has knowledge with respect to the holding, voting, registration, redemption, repurchase or disposition of, or that restricts the transfer of, any capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries.

Company Stock. (i) The As of the date hereof, the authorized capital ------------- stock of the Company consists solely of 400,000,000 Shares and no (i) 50,000,000 shares of preferred stockCompany Common Stock, of which 13,986,899 shares are outstanding as of the date hereof and (ii) 20,000,000 shares of Company Preferred Stock, of which 748,179 shares are outstanding (in the form of Company Convertible Preferred Stock) as of the date hereof. As of the close date hereof, 2,433,016 shares of business on December 14Company Common Stock are held in treasury by the Company and 748,179 shares of Company Convertible Preferred Stock are otherwise owned by the Company or its Subsidiaries (collectively, 2011 (the “Measurement Date”"Treasury Stock"), (A) 56,663,030 Shares (excluding treasury shares) were . The outstanding shares of Company Stock have been duly authorized and are validly issued and outstanding, (B) 0 Shares were held by the Company in treasury and 112,607 Shares were owned by the Company’s wholly-owned Subsidiaries, and (C) 11,394,674 Shares were reserved for issuance pursuant to the Company Stock Plans (of which 4,302,373 Shares were subject to outstanding Company Stock Options and 2,236,848 Shares were subject to outstanding RSUs). (ii) All outstanding shares of capital stock of the Company are, and all shares reserved for issuance will be when issued, duly authorized, validly issued, fully paid and nonassessable, and not subject to or no preemptive rights (and were not issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision rights). As of the FBCAdate hereof, other than the Company Rights and except as Previously Disclosed in its Disclosure Schedule, there are no shares of Company Stock authorized and reserved for issuance, the Company Charterdoes not have any Rights issued or outstanding with respect to Company Stock, and the Company does not have any commitment to authorize, issue or sell any Company Stock or Rights, except pursuant to this Agreement. Since May 29, 1997, the Company Bylaws or any Contract to which the Company is a party or is otherwise bound. Other than as set forth in paragraph (i) above, has issued no shares of capital stock Company Stock or Rights or reserved any shares for such purposes except pursuant to Previously Disclosed plans or commitments. The number of the Company are owned by any Subsidiary of the Company. All outstanding shares of capital stock Company Stock which are issuable and other voting securities or equity interests of each Subsidiary of the Company have been duly authorized and validly issued, are fully paid, nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right. All shares of capital stock and other voting securities or equity interests of each such Subsidiary are owned, directly or indirectly, by the Company, free and clear of all pledges, claims, liens, charges, options, rights of first refusal, encumbrances and security interests of any kind or nature whatsoever (including any limitation on voting, sale, transfer or other disposition or exercise of any other attribute of ownership) (collectively, “Liens”). (iii) Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations having the right to vote (or convertible into, or exchangeable or exercisable for, securities having the right to vote) with the shareholders of the Company or such Subsidiary on any matter. Except as set forth above in this paragraph (a) and except reserved for changes since the close of business on the Measurement Date resulting from the issuance upon exercise of Company Stock Options described in Section 3.2(b), there are no outstanding (A) shares of capital stock or other voting securities or equity interests as of the Company, (B) securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock of the Company or other voting securities or equity interests of the Company or any of its Subsidiaries, (C) stock appreciation rights, “phantom” stock rights, performance units, interests in or rights to the ownership or earnings of the Company or any of its Subsidiaries or other equity equivalent or equity-based awards or rights, (D) subscriptions, options, warrants, calls, commitments, Contracts or other rights to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any shares of capital stock of the Company or any of its Subsidiaries, voting securities, equity interests or securities convertible into or exchangeable or exercisable for capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries or rights or interests described date hereof are Previously Disclosed in the preceding clause (C), or (E) obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, grant, deliver or sell, or cause to be issued, granted, delivered or sold, any such securitiesCompany's Disclosure Schedule. (iv) There are no shareholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or to which the Company has knowledge with respect to the holding, voting, registration, redemption, repurchase or disposition of, or that restricts the transfer of, any capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries.

Company Stock. (i) The authorized capital stock of the Company consists of 400,000,000 Shares and no (i) 7,500,000 shares of Company Common Stock, (ii) 1,000,000 shares of preferred stockstock (the "COMPANY PREFERRED STOCK"), and (iii) 16,500,000 shares of undesignated stock (the "COMPANY UNDESIGNATED STOCK"). As of the close of business on December 14May 30, 2011 (the “Measurement Date”)2000, (Aa) 56,663,030 Shares (excluding treasury shares) 4,891,191 shares of Company Common Stock were issued and outstanding, (Bb) 0 Shares no shares of Company Preferred Stock were held by the issued and outstanding, (c) no shares of Company in treasury Undesignated Stock were issued and 112,607 Shares were owned by the Company’s wholly-owned Subsidiariesoutstanding, and (Cd) 11,394,674 Shares 670,762 shares of Company Common Stock were reserved for issuance pursuant to under the Company's ESPP, (e) 625,357 shares of Company Common Stock were reserved for issuance under the Company's 1990 and 1997 Stock Option Plans and (f) 325,000 shares of which 4,302,373 Shares Company Common Stock were subject to outstanding reserved for issuance under Company Stock Options and 2,236,848 Shares were subject to outstanding RSUs). (ii) All Warrants. The outstanding shares of capital stock of the Company are, Common Stock have been duly authorized and all shares reserved for issuance will be when issued, duly authorized, are validly issuedissued and outstanding, fully paid and nonassessable, and not subject to or no preemptive rights (and were not issued in violation of any purchase option, call option, right of first refusal, subscriptive or preemptive right, subscription right or any similar right under any provision rights). As of the FBCAdate hereof, other than the Company Charter, the Company Bylaws or any Contract to which the Company is a party or is otherwise bound. Other than as set forth in paragraph (i) above, no shares of capital stock of the Company are owned by any Subsidiary of the Company. All outstanding shares of capital stock and other voting securities or equity interests of each Subsidiary of the Company have been duly authorized and validly issued, are fully paid, nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right. All shares of capital stock and other voting securities or equity interests of each such Subsidiary are owned, directly or indirectly, by the Company, free and clear of all pledges, claims, liens, charges, options, rights of first refusal, encumbrances and security interests of any kind or nature whatsoever (including any limitation on voting, sale, transfer or other disposition or exercise of any other attribute of ownership) (collectively, “Liens”). (iii) Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations having the right to vote (or convertible into, or exchangeable or exercisable for, securities having the right to vote) with the shareholders of the Company or such Subsidiary on any matter. Except as set forth above in this paragraph (a) and except for changes since the close of business on the Measurement Date resulting from the exercise of Company Stock Options described in Section 3.2(b)and the Company Warrants, there are no outstanding (A) shares of capital stock Company Common Stock authorized and reserved for issuance, the Company does not have any Rights issued or other voting securities outstanding with respect to Company Stock, and the Company does not have any commitment to authorize, issue or equity interests of the Companysell any Company Stock or Rights, (Bexcept pursuant to this Agreement. Section 4.3(e) securities of the Company Disclosure Schedule sets forth a list of the holders of outstanding Company Stock Options and Company Warrants, the date that each such Company Stock Option or any Company Warrant was granted, the number of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock Company Common Stock subject to each such Company Stock Option or Company Warrant, the expiration date of each such Company Stock Option or Company Warrant and the price at which each such Company Stock Option or other voting securities or equity interests of the Company or any of its Subsidiaries, (C) stock appreciation rights, “phantom” stock rights, performance units, interests in or rights to the ownership or earnings of the Company or any of its Subsidiaries or other equity equivalent or equity-based awards or rights, (D) subscriptions, options, warrants, calls, commitments, Contracts or other rights to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any shares of capital stock of the Company or any of its Subsidiaries, voting securities, equity interests or securities convertible into or exchangeable or exercisable for capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries or rights or interests described in the preceding clause (C), or (E) obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, grant, deliver or sell, or cause to Warrant may be issued, granted, delivered or sold, any such securitiesexercised. (iv) There are no shareholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or to which the Company has knowledge with respect to the holding, voting, registration, redemption, repurchase or disposition of, or that restricts the transfer of, any capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries.