Common use of Parent Capital Structure Clause in Contracts

Parent Capital Structure. (a) As of April 30, 2010, the authorized capital stock of Parent consists of (i) 150,000,000 shares of Parent Common Stock, of which 96,910,999 shares were issued and outstanding and (ii) 5,000,000 shares of Parent’s preferred stock, par value $0.001 per share (“Parent Preferred Stock,” and together with the Parent Common Stock, the “Parent Capital Stock”) none of which were issued and outstanding. All shares of Parent Capital Stock outstanding as of the date hereof are duly authorized, validly issued, fully paid and non-assessable and not subject to preemptive rights created by statute, the certificate of incorporation or bylaws of Parent, or any Contract to which Parent is a party or by which it is bound. There are no declared or accrued but unpaid dividends with respect to any shares of Parent Capital Stock. (b) All shares of Parent Capital Stock outstanding as of the date hereof have been validly issued in compliance in all material respects with all applicable Laws, and were issued in accordance with any right of first refusal or similar right or limitation included in the Charter Documents or any other Contracts to which Parent is a party. (c) Except for the Parent Stock Plans, Parent has no stock option plan or any other plan, arrangement or agreement providing for equity compensation to any person that has not been filed with the Current Parent SEC Filings. As of April 30, 2010, Parent has reserved 11,650,620 shares of Parent Common Stock for issuance to employees and directors of, and consultants to, Parent upon the issuance of stock upon the exercise of options (the “Parent Options”) or vesting of Restricted Stock Units (the “Parent RSUs”) granted under the Parent Stock Plans, of which as of April 30, 2010 (i) 10,876,651 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised options or the vesting of Restricted Stock Units granted under the Stock Plans, and (ii) 773,969 shares remain available for future grant. Parent has reserved 2,219,807 shares of Parent Common Stock for issuance pursuant to Parent’s 2002 Employee Stock Purchase Plan. As of the date hereof, except for the Parent Options and Parent RSUs and except as disclosed in the Current Parent SEC Filings, there are no options, warrants, calls, rights, convertible securities, commitments or agreements of any character, written or oral, to which Parent is a party or by which Parent is bound obligating Parent to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of Parent or obligating Parent to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. As the date hereof, there are no outstanding or authorized stock appreciation right, phantom stock, profit participation, or other similar rights with respect to Parent. (d) Parent is not a party to any, and to the Knowledge of Parent, there are no, voting trusts, proxies, or other written agreements with respect to the voting stock of Parent. There are no agreements to which Parent is a party relating to the registration, sale or transfer (including agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Parent Capital Stock.

Parent Capital Structure. (a) As of April 30, 2010, the The authorized capital stock of Parent consists of of: (iA) 150,000,000 280,000,000 shares of Parent Common Stock, par value $0.001 per share and (B) 40,000,000 shares of preferred stock, par value $0.001 per share, of which 96,910,999 (x) 100,000 shares have been designated as Series A Preferred Stock (the "PARENT SERIES A PREFERRED STOCK"), all of which will be reserved for issuance upon exercise of preferred stock purchase rights issuable pursuant to the Preferred Shares Rights Agreement dated as of October 23, 1996, as amended and restated as of March 15, 2004 by and between Parent and U.S. Stock Transfer Corporation, a true and complete copy of which is filed as EXHIBIT 1 to Parent's Registration Statement on Form 8 A filed with the SEC on March 19, 2004 and as amended as of May 5, 2005 by and between Parent and U.S. Stock Transfer Corporation, a true and complete copy of which is filed as EXHIBIT 4.8 to Parent's Current Report on Form 8-K filed with the SEC on May 10, 2005 and (y) 15,000,000 shares have been designated as Series B Preferred Stock (the "PARENT SERIES B PREFERRED STOCK"). At the close of business on January 31, 2007: (i) 172,555,084 shares of Parent Common Stock were issued and outstanding, excluding shares of Parent Common Stock held by Parent in its treasury, (ii) 3,032,662 shares of Parent Common Stock were issued and held by Parent in its treasury, (iii) not more than 20,310,336 shares of Parent Common Stock were reserved for issuance upon exercise of outstanding employee and director stock options to purchase shares of Parent Common Stock and (iv) not more than 4,248,994 shares of Parent Common Stock were reserved for issuance upon vesting of outstanding employee and director restricted stock units to purchase shares of Parent Common Stock. As of the date hereof: (i) 3,562,238 shares of Parent Series B Preferred Stock were issued and outstanding and (ii) 5,000,000 not more than 8,060,339 shares of Parent’s preferred stock, par value $0.001 per share (“Parent Preferred Stock,” and together with the Common Stock were reserved for issuance upon exercise of outstanding warrants to purchase shares of Parent Common Stock, the “Parent Capital Stock”) none of which were issued and outstanding. All No shares of Parent Capital Common Stock outstanding as are owned or held by any subsidiary of Parent. All of the date hereof are outstanding shares of capital stock of Parent are, and all shares of capital stock of Parent which may be issued as contemplated or permitted by this Agreement will be, when issued, duly authorized, authorized and validly issued, fully paid and non-assessable nonassessable and not subject to any preemptive rights created by statute, the certificate of incorporation or bylaws of Parent, or any Contract to which Parent is a party or by which it is boundrights. There are no declared or accrued but unpaid dividends with respect to any shares of capital stock of Parent. Since the close of business on January 31, 2007, Parent Capital has, in the ordinary course of business pursuant to equity compensation plans of Parent, issued shares of Parent Common Stock., incentive stock options, and other securities, which issuances, individually or in the aggregate, have not had and would not reasonably be expected have a Parent Material Adverse Effect (b) All shares Except (1) as set forth above and (2) for issuances of securities in the ordinary course of business pursuant to equity compensation plans of Parent Capital Stock outstanding between January 31, 2007 and the date hereof, as of the date hereof have been validly issued in compliance in all material respects with all applicable Laws, and were issued in accordance with any right of first refusal or similar right or limitation included in the Charter Documents or any other Contracts to which Parent is a party. (c) Except for the Parent Stock Plans, Parent has no stock option plan or any other plan, arrangement or agreement providing for equity compensation to any person that has not been filed with the Current Parent SEC Filings. As of April 30, 2010, Parent has reserved 11,650,620 shares of Parent Common Stock for issuance to employees and directors of, and consultants to, Parent upon the issuance of stock upon the exercise of options (the “Parent Options”) or vesting of Restricted Stock Units (the “Parent RSUs”) granted under the Parent Stock Plans, of which as of April 30, 2010 (i) 10,876,651 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised options or the vesting of Restricted Stock Units granted under the Stock Plans, and (ii) 773,969 shares remain available for future grant. Parent has reserved 2,219,807 shares of Parent Common Stock for issuance pursuant to Parent’s 2002 Employee Stock Purchase Plan. As of the date hereof, except for the Parent Options and Parent RSUs and except as disclosed in the Current Parent SEC Filings, there are no securities, options, warrants, calls, rights, convertible securitiescommitments, commitments agreements, arrangements or agreements undertakings of any character, written or oral, kind to which Parent or any of its subsidiaries is a party or by which Parent any of them is bound obligating Parent or any of its subsidiaries to issue, deliver, deliver or sell, repurchase or redeem, or cause to be issued, delivered, delivered or sold, repurchased or redeemed, any additional shares of the capital stock or other voting securities of Parent or any of its subsidiaries or obligating Parent or any of its subsidiaries to issue, grant, extend, accelerate the vesting of, change the price of, otherwise amend extend or enter into any such security, option, warrant, call, right, commitment commitment, agreement, arrangement or agreementundertaking. As of the date hereof, there are no not any outstanding contractual obligations of Parent, except through the net exercise of warrants or authorized through retention of shares for payment of withholding taxes upon vesting of restricted stock appreciation right, phantom stock, profit participationawards, or other similar rights with respect any of its subsidiaries to Parentrepurchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries. (dc) The authorized capital stock of Sub I consists of 1,000 shares of common stock, par value $0.001 per share, of which 1,000 shares are issued and outstanding. Parent is not a party the sole stockholder of Sub I and is the legal and beneficial owner of all 1,000 issued and outstanding shares. Parent is the sole member of Sub II. Sub I and Sub II were formed by counsel to any, and to Parent at the Knowledge direction of Parent, there are nosolely for purposes of effecting the Merger and the other transactions contemplated hereby. Except as contemplated by this Agreement, voting truststhe Subs do not hold, proxiesnor have they held, any material assets or incurred any material liabilities nor have the Subs carried on any business activities other written agreements than in connection with respect to the voting stock of Parent. There are no agreements to which Parent is a party relating to Merger and the registration, sale or transfer (including agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Parent Capital Stocktransactions contemplated by this Agreement.

Parent Capital Structure. (a) As of April 30, 2010the date hereof, the authorized capital stock of the Parent consists of (i) 150,000,000 25,000,000 shares of authorized Parent Common Stock, Stock of which 96,910,999 11,322,560 shares were are issued and outstanding outstanding; and (ii) 5,000,000 shares of Parent’s authorized preferred stock, par value $0.001 per share (“Parent stock consisting of 200,000 shares designated as Series A Preferred Stock,” and together with the Parent Common Stock, the “Parent Capital Stock”) Stock none of which were is issued and outstanding; and 4,800,000 shares of undesignated preferred stock none of which is issued and outstanding. All outstanding shares of Parent Capital Common Stock outstanding as of the date hereof are duly authorized, validly issued, fully paid and non-assessable and not subject to preemptive rights created by statute, the certificate of incorporation or bylaws of Parent, or any Contract to which nonassessable. Parent is a party or by which it is bound. There are no declared or accrued but unpaid dividends with respect to any has reserved 2,631,578 shares of Parent Capital Stock. (b) All shares Common Stock for issuance upon conversion of Parent Capital Stock outstanding as of the date hereof have been validly issued in compliance in all material respects with all applicable Laws, and were issued in accordance with any right of first refusal or similar right or limitation included in the Charter Documents or any other Contracts to which Parent is a party. (c) Except for the Parent Stock Plans, Parent's Subordinated Convertible Notes due 2004. The Parent has no stock option plan or any other plan, arrangement or agreement providing for equity compensation to any person that has not been filed with the Current Parent SEC Filings. As of April 30, 2010, Parent has also reserved 11,650,620 300,000 shares of Parent Common Stock for issuance to employees and directors of, and consultants to, of Parent upon pursuant to the issuance of stock upon the exercise of options (the “Parent Options”) or vesting of Restricted Parent's 1997 Employee Stock Units (the “Parent RSUs”) granted under the Parent Stock PlansPurchase Plan, of which as 7,708 shares have been issued. The Parent has no other Parent Capital Stock authorized, issued or outstanding. (b) The Parent has reserved 2,500,000 shares of April 30Parent Common Stock for issuance to officers, 2010 (i) 10,876,651 shares are issuabledirectors and key employees, employees of Parent and subsidiaries of Parent pursuant to Parent's Amended and Restated Performance Stock Option Plan, of which, as of the date hereof, upon the exercise of 731,965 shares have been issued, and 1,136,904 shares are subject to outstanding, unexercised options or the vesting of Restricted Stock Units granted under the Stock Plans, and (ii) 773,969 shares remain available for future grantoptions. The Parent has reserved 2,219,807 150,000 shares of Parent Common Stock for issuance to non-employees of Parent pursuant to the Parent’s 2002 Employee 's Nonqualified Stock Purchase Option Plan. As , of which, as of the date hereof, except for the Parent Options 43,500 shares have been issued and Parent RSUs and except as disclosed in the Current Parent SEC Filings34,480 shares are subject to outstanding, there are no exercised options, warrants, calls, rights, convertible securities, commitments or agreements of any character, written or oral, to which Parent is a party or by which Parent is bound obligating Parent to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of Parent or obligating Parent to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. As the date hereof, there are no outstanding or authorized stock appreciation right, phantom stock, profit participation, or other similar rights with respect to Parent. (d) Parent is not a party to any, and to the Knowledge of Parent, there are no, voting trusts, proxies, or other written agreements with respect to the voting stock of Parent. There are no agreements to which Parent is a party relating to the registration, sale or transfer (including agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Parent Capital Stock.

Parent Capital Structure. (a) As of April 30, 2010, the The authorized capital stock of Parent consists of of: (iA) 150,000,000 560,000,000 shares of Parent Common Stock, of which 96,910,999 shares were issued and outstanding par value $0.001 per share and (iiB) 5,000,000 40,000,000 shares of Parent’s preferred stock, par value $0.001 per share share, of which (“Parent x) 100,000 shares have been designated as Series A Preferred Stock,” and together with the Parent Common Stock, Stock (the “Parent Capital Series A Preferred Stock”) none ), all of which will be reserved for issuance upon exercise of preferred stock purchase rights issuable pursuant to the Preferred Shares Rights Agreement dated as of October 23, 1996, as amended and restated as of March 15, 2004 by and between Parent and U.S. Stock Transfer Corporation, a true and complete copy of which is filed as Exhibit 1 to Parent’s Registration Statement on Form 8 A filed with the SEC on March 19, 2004 and as amended as of May 5, 2005 by and between Parent and U.S. Stock Transfer Corporation, a true and complete copy of which is filed as Exhibit 4.8 to Parent’s Current Report on Form 8-K filed with the SEC on May 10, 2005 and (y) 15,000,000 shares have been designated as Series B Preferred Stock (the “Parent Series B Preferred Stock”). At the close of business on March 31, 2008: (i) 210,445,795 shares of Parent Common Stock were issued and outstanding. All , excluding shares of Parent Capital Common Stock held by Parent in its treasury, (ii) 3,222,319 shares of Parent Common Stock were issued and held by Parent in its treasury, (iii) 3,562,238 shares of Parent Series B Preferred Stock were issued and outstanding as and (iv) not more than 16,285,299 shares of Parent Common Stock were reserved for issuance upon exercise of outstanding employee and director stock options to purchase shares of Parent Common Stock. No shares of Parent Common Stock are owned or held by any Subsidiary of Parent. All of the date hereof are outstanding shares of capital stock of Parent are, and all shares of capital stock of Parent which may be issued as contemplated or permitted by this Agreement will be, when issued, duly authorized, authorized and validly issued, fully paid and non-assessable nonassessable and not subject to any preemptive rights created by statuterights. As of the date of the Agreement, the certificate of incorporation or bylaws of Parent, or any Contract to which Parent is a party or by which it is bound. There there are no declared or accrued but unpaid dividends with respect to any shares of Parent Capital Stockcapital stock of Parent. (b) All shares of Parent Capital Stock outstanding Except as of the date hereof have been validly issued in compliance in all material respects with all applicable Laws, and were issued in accordance with any right of first refusal or similar right or limitation included in the Charter Documents or any other Contracts to which Parent is a party. (c) Except for the Parent Stock Plans, Parent has no stock option plan or any other plan, arrangement or agreement providing for equity compensation to any person that has not been filed with the Current Parent SEC Filings. As of April 30, 2010, Parent has reserved 11,650,620 shares of Parent Common Stock for issuance to employees and directors of, and consultants to, Parent upon the issuance of stock upon the exercise of options (the “Parent Options”) or vesting of Restricted Stock Units (the “Parent RSUs”) granted under the Parent Stock Plans, of which as of April 30, 2010 (i) 10,876,651 shares are issuableset forth above, as of the date hereofclose of business on March 31, upon the exercise of outstanding, unexercised options or the vesting of Restricted Stock Units granted under the Stock Plans, and (ii) 773,969 shares remain available for future grant. Parent has reserved 2,219,807 shares of Parent Common Stock for issuance pursuant to Parent’s 2002 Employee Stock Purchase Plan. As of the date hereof, except for the Parent Options and Parent RSUs and except as disclosed in the Current Parent SEC Filings2008, there are no securities, options, warrants, calls, rights, convertible securitiescommitments, commitments agreements, arrangements or agreements undertakings of any character, written or oral, kind to which Parent or any of its Subsidiaries is a party or by which Parent any of them is bound obligating Parent or any of its Subsidiaries to issue, deliver, deliver or sell, repurchase or redeem, or cause to be issued, delivered, delivered or sold, repurchased or redeemed, any additional shares of the capital stock or other voting securities of Parent or any of its Subsidiaries or obligating Parent or any of its Subsidiaries to issue, grant, extend, accelerate the vesting of, change the price of, otherwise amend extend or enter into any such security, option, warrant, call, right, commitment commitment, agreement, arrangement or agreementundertaking. As of the date hereofclose of business on March 31, 2008, there are no not any outstanding contractual obligations of Parent or authorized any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock appreciation right, phantom stock, profit participation, of Parent or other similar rights with respect to Parentany of its Subsidiaries. (dc) The authorized capital stock of Sub consists of 1,000 shares of common stock, par value $0.001 per share, of which 1,000 shares are issued and outstanding. Parent is the sole stockholder of Sub and is the legal and beneficial owner of all 1,000 issued and outstanding shares. Except as contemplated by this Agreement, Sub does not a party to anyhold, nor has it held, any material assets or incurred any material liabilities nor has Sub carried on any business activities other than in connection with the Merger and to the Knowledge transactions contemplated by this Agreement. Sub was formed at the direction of Parent, there are no, voting trusts, proxies, or solely for purposes of effecting the Merger and the other written agreements with respect to the voting stock of Parent. There are no agreements to which Parent is a party relating to the registration, sale or transfer (including agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Parent Capital Stocktransactions contemplated hereby.

Parent Capital Structure. (a) As of April 30, 2010, the The authorized capital stock of Parent consists of (i) 150,000,000 5,000,000,000 shares of Parent Common Stock, of which 96,910,999 shares were issued Stock and outstanding and (ii) 5,000,000 10,000,000 shares of Parent’s preferred stock, par value $0.001 per share (“Parent "PARENT PREFERRED STOCK"), 2,000,000 of which shares have been designated Series A Junior Participating Preferred Stock,” , all of which will be reserved for issuance upon the exercise of preferred stock purchase rights (the "PARENT RIGHTS") issuable pursuant to the Rights Agreement between Parent and together with Equiserve Trust Company, N.A., dated as of March 15, 2001 (the "PARENT RIGHTS AGREEMENT"). At the close of business on July 11, 2003, (i) 608,331,741 shares of Parent Common Stock, the “Parent Capital Stock”) none of which Stock were issued and outstanding. All , (ii) 16,458,620 shares of Parent Capital Common Stock were held by Parent in its treasury and (iii) no shares of Parent Preferred Stock were issued or outstanding. As of July 11, 2003, (i) Parent had reserved an aggregate of 326,885,729 shares of Parent Common Stock for issuance pursuant to its option plans (excluding Parent's employee stock purchase plans) and (ii) at the close of business on July 11, 2003, there were (x) outstanding as options to purchase an aggregate of 116,680,063 shares of Parent Common Stock (excluding rights to purchase Parent Common Stock under Parent's employee stock purchase plans) and (y) 7,600,000 shares of Parent Common Stock reserved for issuance under Parent's employee stock purchase plans. All outstanding shares of Parent Common Stock are, and all shares of Parent Common Stock which may be issued pursuant to this Agreement will be, when issued in accordance with the date hereof are terms hereof, duly authorized, validly issued, fully paid and non-assessable nonassessable and not subject to preemptive rights created by statute, the certificate Certificate of incorporation Incorporation or bylaws Bylaws of Parent, Parent or any Contract agreement or document to which Parent is a party or by which it or its assets is bound. There are Except as disclosed in Parent SEC Reports filed prior to the date hereof, there is no declared holder or accrued but unpaid dividends with respect to any shares group of Parent Capital Stock. (b) All shares of Parent Capital Stock outstanding as holders that beneficially owns greater than 1% of the date hereof have been validly issued in compliance in all material respects with all applicable Laws, and were issued in accordance with any right of first refusal or similar right or limitation included in the Charter Documents or any other Contracts to which Parent is a party. (c) Except for the Parent Stock Plans, Parent has no stock option plan or any other plan, arrangement or agreement providing for equity compensation to any person that has not been filed with the Current Parent SEC Filings. As of April 30, 2010, Parent has reserved 11,650,620 shares of Parent Common Stock outstanding (including for this purpose any shares convertible into Parent Common Stock on a fully diluted as converted basis, whether or not vested) who have registration rights with respect to any such securities. Except as otherwise set forth in this Section 3.3, there are no equity securities of any class of Parent equity security, or any securities exchangeable or convertible into or exercisable for such equity securities issued, reserved for issuance to employees and directors ofor outstanding other than such equity securities that do not, and consultants toin the aggregate, Parent upon the issuance represent in excess of stock upon the exercise 2% of options (the “Parent Options”) or vesting of Restricted Stock Units (the “Parent RSUs”) granted under the Parent Stock Plans, of which as of April 30, 2010 (i) 10,876,651 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised options or the vesting of Restricted Stock Units granted under the Stock Plans, and (ii) 773,969 shares remain available for future grant. Parent has reserved 2,219,807 outstanding shares of Parent Common Stock for issuance pursuant to Parent’s 2002 Employee Stock Purchase Plan. As of the date hereofStock, except for the Parent Options and Parent RSUs and except on a fully diluted as disclosed in the Current Parent SEC Filings, there are no options, warrants, calls, rights, convertible securities, commitments or agreements of any character, written or oral, to which Parent is a party or by which Parent is bound obligating Parent to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of Parent or obligating Parent to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. As the date hereof, there are no outstanding or authorized stock appreciation right, phantom stock, profit participation, or other similar rights with respect to Parentconverted basis. (d) Parent is not a party to any, and to the Knowledge of Parent, there are no, voting trusts, proxies, or other written agreements with respect to the voting stock of Parent. There are no agreements to which Parent is a party relating to the registration, sale or transfer (including agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Parent Capital Stock.