Common use of Parent Capitalization Clause in Contracts

Parent Capitalization. The authorized capital stock of Parent consists of 75,000,000 shares of Parent Common Stock and 25,000,000 shares of preferred stock, $0.01 par value (“Parent Preferred Stock”). As of the date hereof, of the Parent Preferred Stock, 9,750,000 shares have been designated as Series A Convertible Preferred Stock (the “Series A Preferred Stock”) and 10,000,000 have been designated as Series A-1 Convertible Preferred Stock (the “Series A-1 Preferred Stock”). As of the date hereof, there were issued and outstanding 44,427,630 shares of Common Stock, zero shares of Series A Preferred Stock and 4,060,397 shares of Series A-1 Preferred Stock. There are no other outstanding shares of capital stock or voting securities of Parent other than shares of Parent Common Stock issued after that same date upon the exercise of options issued under Parent’s 2007 Incentive and Non-Qualified Stock Option Plan and 1997 Incentive and Non-Qualified Stock Option Plan (the “Parent Stock Plans”). All outstanding shares of Parent Common Stock and Series A-1 Preferred Stock have been, and all shares of Parent Common Stock issuable upon exercise of options and warrants will be, when issued in accordance with their respective terms thereof, duly authorized, validly issued, fully paid and are (or in the case of shares that have not yet been issued, will be) nonassessable and free of preemptive rights. As of the close of business on that same date, Parent has reserved 9,272,500 shares of Parent Common Stock for issuance to employees, directors and independent contractors pursuant to the Parent Stock Plans, of which 2,855,500 shares are subject to outstanding, unexercised options (the “Parent Options”), and 14,784,347 shares of Parent Common Stock are reserved for issuance pursuant to outstanding warrants (the “Parent Warrants”). Except as set forth in this Section 4.05, or for changes since the date of this Agreement resulting from the exercise of Parent Options or Parent Warrants outstanding on such date and disclosed on Section 4.05 of the Parent Disclosure, there are not now, and at the Effective Time there will not be, any outstanding (i) shares of capital stock or voting securities of Parent, (ii) securities of Parent convertible into or exchangeable for shares of capital stock or voting securities of Parent, (iii) options, warrants or other rights, agreements or arrangements to acquire from Parent, or other obligations or commitments of Parent to issue, transfer or sell any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities or other equity interests in, Parent or any Subsidiary of Parent, (iv) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, Parent, (v) voting trusts, proxies or other similar agreements or understandings to which Parent or any of its Subsidiaries is a party granting to any person or group of persons the right to elect, or to designate or nominate for election, a director to the Parent’s board of directors or by which Parent or any of its Subsidiaries is bound with respect to the voting of any shares of capital stock of Parent or any of its Subsidiaries, (vi) contractual obligations or commitments of any character to which Parent or any of its Subsidiaries is a party or by which Parent or any of its Subsidiaries is bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of Parent or any of its Subsidiaries, or (vii) obligations of Parent or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the capital stock of Parent. No capital stock of Parent is owned by any Subsidiary of Parent. There are no commitments or agreements of any character to which Parent is bound obligating Parent to accelerate the vesting of any Parent Option as a result of the Merger. All outstanding Parent Common Stock, all Parent Options, all Parent Warrants, and all outstanding shares of capital stock of each Subsidiary of Parent have been issued and granted in compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.

Parent Capitalization. The (a) As of the date hereof, the authorized capital stock of Parent consists of 75,000,000 (i) 271,000,000 shares of Parent Common Stock Stock, of which 53,559,586 shares have been issued and 25,000,000 are outstanding as of the close of business on the day immediately preceding the date of this Agreement, and (ii) 131,423,417 shares of preferred stock, $0.01 par value (“Parent Preferred Stock”). As of the date hereof, of the Parent Preferred Stock, 9,750,000 shares have been designated as consisting of 108,158,571 Series A Convertible Preferred Stock (the “Series A B-1 Preferred Stock”) and 10,000,000 have been designated as Series A-1 Convertible Preferred Stock (the “Series A-1 Preferred Stock”). As , all of the date hereof, there were which are issued and outstanding 44,427,630 shares as of Common the close of business on the day immediately preceding the date of this Agreement, 3,649,172 Series B-2 Preferred Stock, zero shares all of which are issued and outstanding as of the close of business on the day immediately preceding the date of this Agreement, 2,563,300 Series A B-3 Preferred Stock, all of which are issued and outstanding as of the close of business on the day immediately preceding the date of this Agreement, and 17,052,374 Series C Preferred Stock, 16,058,061 of which are issued and outstanding as of the close of business on the day immediately preceding the date of this Agreement. Each share of Parent Preferred Stock and 4,060,397 shares of Series A-1 Preferred Stock. There are no other outstanding shares of capital stock or voting securities of Parent other than shares is convertible into one share of Parent Common Stock issued after that same date upon the exercise of options issued under Parent’s 2007 Incentive and Non-Qualified Stock Option Plan and 1997 Incentive and Non-Qualified Stock Option Plan (the “Parent Stock Plans”)Stock. All of the issued and outstanding shares of Parent Common Stock and Series A-1 Parent Preferred Stock have beenbeen duly authorized and validly issued, are fully paid and non-assessable, and all shares of Parent Common Stock issuable upon exercise of options and warrants will be, when (i) were issued in accordance with their respective terms thereof, duly authorized, validly issued, fully paid and are (the registration or in the case of shares that have not yet been issued, will be) nonassessable and free of preemptive rights. As qualification provisions of the close of business on that same dateSecurities Act, Parent has reserved 9,272,500 shares of Parent Common Stock for issuance to employees, directors and independent contractors any applicable federal or state securities laws or pursuant to the Parent Stock Plans, of which 2,855,500 shares are subject to outstanding, unexercised options (the “Parent Options”), and 14,784,347 shares of Parent Common Stock are reserved for issuance pursuant to outstanding warrants (the “Parent Warrants”). Except as set forth in this Section 4.05, or for changes since the date of this Agreement resulting from the exercise of Parent Options or Parent Warrants outstanding on such date and disclosed on Section 4.05 of the Parent Disclosure, there are not now, and at the Effective Time there will not be, any outstanding (i) shares of capital stock or voting securities of Parent, (ii) securities of Parent convertible into or exchangeable for shares of capital stock or voting securities of Parent, (iii) options, warrants or other rights, agreements or arrangements to acquire from Parent, or other obligations or commitments of Parent to issue, transfer or sell any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities or other equity interests in, Parent or any Subsidiary of Parent, (iv) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, Parent, (v) voting trusts, proxies or other similar agreements or understandings to which Parent or any of its Subsidiaries is a party granting to any person or group of persons the right to elect, or to designate or nominate for election, a director to the Parent’s board of directors or by which Parent or any of its Subsidiaries is bound with respect to the voting of any shares of capital stock of Parent or any of its Subsidiaries, (vi) contractual obligations or commitments of any character to which Parent or any of its Subsidiaries is a party or by which Parent or any of its Subsidiaries is bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of Parent or any of its Subsidiaries, or (vii) obligations of Parent or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the capital stock of Parent. No capital stock of Parent is owned by any Subsidiary of Parent. There are no commitments or agreements of any character to which Parent is bound obligating Parent to accelerate the vesting of any Parent Option as a result of the Merger. All outstanding Parent Common Stock, all Parent Options, all Parent Warrants, and all outstanding shares of capital stock of each Subsidiary of Parent have been issued and granted in compliance with (i) all applicable securities Laws and other applicable Laws valid exemptions therefrom and (ii) all requirements set forth were not issued in violation of any applicable contractsstatutory, contractual or other preemptive rights, rights of first refusal or similar rights. Upon the filing of the Parent Amended and Restated Charter, 20,000,000 of Parent Series C-2 Preferred Stock will be duly authorized. Each share of Parent Series C-2 Preferred Stock will be convertible into one share of Parent Common Stock.