Common use of Capitalization, Etc Clause in Contracts

Capitalization, Etc. (a) As of March 16, 2001, the authorized capital stock of Parent consists of: (i) 35,000,000 shares of Parent Common Stock and (ii) 5,000,000 shares of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding and 27,437 shares of Parent Preferred Stock have been issued or are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001the Capitalization Date, the authorized capital stock of Parent consists of: consisted of 70,000,000 shares of Parent Common Stock, of which 16,500,050 shares were issued and outstanding (i) 35,000,000 inclusive of 34,031 Parent Restricted Stock Awards and excluding 4,071,600 shares of Parent Common Stock held in the treasury of the Company); and (ii) 5,000,000 shares of preferred stock, par value $0.0001 per share, of Parent, of which no shares were issued or outstanding. As of March 16, 2001, 17,429,183 the Capitalization Date: (i) 4,071,600 shares of Parent Common Stock have been issued and are outstanding and 27,437 were held in the treasury of the Company, (ii) 2,640,548 shares of Parent Preferred Common Stock have been issued were subject to issuance pursuant to outstanding stock options granted under the Parent Option Plans (stock options granted by Parent pursuant to the Parent Option Plans or otherwise are outstanding. No referred to collectively herein as "Parent Options"), (iii) 512,192 shares of capital Parent Common Stock were subject to issuance pursuant to outstanding Parent restricted stock units issued pursuant to the Parent Option Plans (the "Parent RSUs") and (iv) 326,234 shares of Parent are held in Common Stock were reserved for issuance pursuant to Parent's treasury2003 Employee Stock Purchase Plan and the 2003 Foreign Subsidiary Employee Stock Purchase Plan (collectively, the "Parent ESPP"). All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiaryof Parent's Subsidiaries. None of the outstanding shares of Parent Common Stock is are entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is not under any obligation, obligation or is bound by any Contract pursuant to which it may become obligated, obligated to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a4.4(a) or (b) aboveabove and except for rights under the Parent ESPP to purchase shares of Parent Common Stock, as of the Agreement Date, there is no: no (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; , (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; Parent or (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights"). (dc) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares of capital stock of each Subsidiary other securities of Parent have been issued and granted in compliance with (i) all applicable securities laws Laws and other applicable Legal Requirements, Laws and (ii) all requirements set forth in applicable Contracts. All outstanding Parent Options were granted with a per share exercise price no lower than the fair market value of one share of Parent Common Stock as of the outstanding grant date. All shares of Parent Common Stock subject to issuance pursuant to Parent Options and Parent RSUs will, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, be duly authorized, validly issued, fully paid, and nonassessable. (d) The authorized capital stock of Merger Sub consists solely of 1,000 shares of Merger Sub Common Stock. As of the Agreement Date, there are 1,000 shares of Merger Sub Common Stock issued and outstanding. All of the shares of capital stock of each of the Subsidiaries of Parent Merger Sub have been duly authorized and are validly issued, are fully paid and nonassessable andand free of preemptive rights, except with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by Parent or another wholly-owned Subsidiary of Parent, free and clear of any Encumbrances, other than restrictions on transfer imposed by applicable securities Laws. Merger Sub was formed solely for directors' qualifying sharesthe purpose of effecting the Merger. Merger Sub has not and will not engage in any activities other than those contemplated by this Agreement and has, and will have as of immediately prior to the Effective Time, no liabilities other than those contemplated by this Agreement. (e) As of the Agreement Date, all membership interests of Merger LLC are issued and outstanding. All of the membership interests of Merger LLC have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by Parent, free and clear of any Encumbrances, other than restrictions on transfer imposed by applicable securities Laws. The Parent Common Stock Merger LLC was formed solely for the purpose of effecting the Upstream Merger. Merger LLC has not and will not engage in any activities other than those contemplated by this Agreement and has, and will have as of immediately prior to be issued in the Merger willEffective Time, when issued in accordance with the provisions of no liabilities other than those contemplated by this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 200,000,000 shares of Parent Common Stock and (ii) 5,000,000 shares of preferred stockParent Preferred Stock. As of March 16November 24, 2001, 17,429,183 65,966,332 shares of Parent Common Stock have been issued and are outstanding and 27,437 outstanding, 689,678 shares of Parent Cumulative Preferred Stock have been issued or are outstanding and no shares of Parent Series A Preferred Stock are issued and outstanding. No As of November 24, 2001, 360,701 shares of capital stock of Parent Common Stock are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options Stock and all outstanding shares of capital stock of each Significant Subsidiary of Parent 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 Parent Contracts. All of the outstanding shares of capital stock of each of the Significant Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, and are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessablenonassessable and in compliance with all applicable securities laws and other applicable Legal Requirements. The shares of Parent Common Stock to be issued upon exercise of Company Assumed Options assumed by Parent in connection with the Merger will, when issued, be issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Parent Contracts.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 150,000,000 shares of Parent Common Stock; and (ii) 10,000,000 shares of Parent Preferred Stock. As of June 22, 2007, 17,680,230 shares of Parent Common Stock were issued and (ii) 5,000,000 shares of preferred stockoutstanding. As of March 16the date of this Agreement, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding and 27,437 no shares of Parent Preferred Stock have been are issued or are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no The authorized capital stock of Merger Sub consists of: 10,000 shares of Parent Merger Sub Common Stock held by any Parent Subsidiary. None Stock, of which 100 shares have been issued, all to Parent, and are outstanding as of the outstanding shares date of this Agreement. Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), does not hold any shares of Parent Common Stockits capital stock in its treasury. Neither As of the date of this Agreement, neither Parent nor any Subsidiary of Parent, Merger Sub is under any obligation, or is bound by any Contract pursuant to which it may become obligated, obligated to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16June 22, 2001: (i) 5,875,000 2007, 4,661,933 shares of Parent Common Stock are reserved for future issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan granted and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to . Other than such stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except except as set forth in Section 3.3(aPart 3.3(b) or (b) aboveof the Parent Disclosure Schedule, as of the date of this Agreement there is no: no (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock of Parent or other securities any of Parentits Subsidiaries; (ii) outstanding security, instrument or obligation that by its terms is or may become convertible into or exchangeable for any shares of the capital stock of Parent or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")Subsidiaries. (dc) All outstanding shares capital stock and options of Parent Common Stock, all outstanding Parent Options and all outstanding shares of capital stock of each Subsidiary of Parent have been Merger Sub were issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001the date of this Agreement, the authorized capital stock of Parent consists of: (i) 35,000,000 900,000,000 shares of Parent Common Stock; and (ii) 2,000,000 shares of Parent Preferred Stock, of which no shares are outstanding. As of April 15, 2005, 244,726,482 shares of Parent Common Stock were issued and (ii) 5,000,000 shares of preferred stockoutstanding. As of March 16, 2001, 17,429,183 No shares of Parent Common Stock have been issued by Parent during the period commencing on April 16, 2005 and are ending on the date of this Agreement. As of April 15, 2005, 33,445,812 shares of Parent Common Stock were subject to issuance pursuant to outstanding Parent Options. No Parent Options have been granted during the period commencing on April 16, 2005 and 27,437 ending on the date of this Agreement. (b) As of April 15, 2005, 200,000 shares of Parent Preferred Stock have been Stock, designated as Series A Preferred Stock, were reserved for future issuance upon exercise of the rights issued or are outstandingpursuant to the Fourth Amended and Restated Rights Agreement dated as of July 1, 2000, between Parent and Computershare Investor Services, LLC, as Rights Agent. No As of April 15, 2005: (i) 11,963,050 shares of capital stock Parent Common Stock were reserved for future issuance pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"); and (ii) 7,802,379 shares of Parent are held in Common Stock were reserved for future issuance pursuant to stock options not yet granted under Parent's treasurystock option plans. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(aSections 3.2(a) or (band 3.2(b), and except as set forth in Part 3.2(c) aboveof the Parent Disclosure Schedule, as of the date of this Agreement, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; or (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: of (i) 35,000,000 3,700,000,000 shares of Parent Common Stock, par value $0.0001 and (ii) 50,000,000 shares of Preferred Stock all of which are designated Series A Preferred Stock, par value $0.0001 and none of which are issued and outstanding. As of the Effective Time, 354,860,484 shares of Parent Common Stock were issued and (ii) 5,000,000 shares of preferred stock. As of March 16outstanding, 2001, 17,429,183 1,131,688,203 shares of Parent Common Stock have been were held in reserve by Parent to accommodate certain convertible financing activities. The issued and are outstanding and 27,437 shares of Parent Preferred Stock have been issued or are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable, and are free of preemptive rights. There are During the period from January 26th, 2014 to the date of this Agreement, (i) there have been no issuances by Parent of shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares capital stock of Parent Common Stock is entitled other than for the conversion or subject retirement of debt and (ii) there have been no issuances of any options, warrants or other rights to acquire capital stock of Parent. Parent has not, subsequent to January 26th, 2014, declared or paid any preemptive rightdividend, right of participationor declared or made any distribution on, right of maintenance or any similar right authorized the creation or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration issuance of, or restricting issued, or authorized or effected any Person from purchasingsplit-up or any other recapitalization of, sellingany of its capital stock, pledging or directly or indirectly redeemed, purchased or otherwise disposing acquired any of (or granting its outstanding capital stock. Parent has not heretofore agreed to take any option or similar right with respect to)such action, any shares and other than the convertible debt holders disclosed in Exhibit G there are no outstanding contractual obligations of Parent Common Stock. Neither Parent nor of any Subsidiary of Parentkind to redeem, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem purchase or otherwise acquire any outstanding shares of capital stock of Parent. Other than the Parent Common Stock, there are no outstanding bonds, debentures, notes or other indebtedness or securities of Parent having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of Parent may vote. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) aboveand Exhibit 3.3(b), there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any there are no shares of capital stock or other voting securities of Parent issued, reserved for issuance or outstanding, and (items (iii) through (iv)there are no outstanding securities, collectivelyoptions, "warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Parent Stock Rights")is a party or by which it is bound obligating Parent to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of Parent or obligating Parent to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. (dc) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares of capital stock of each Subsidiary other securities of Parent have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, Requirements applicable to Parent; and (ii) all material requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Contracts to which Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessableis a party.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 400,000,000 shares of Parent Common Stock; and (ii) 10,000,000 shares of preferred stock, $0.01 par value per share (“Parent Preferred Stock”). As of 5:00 p.m. (California time) on October 26, 2021 (the “Parent Listing Date”): (A) 120,887,049 shares of Parent Common Stock and (ii) 5,000,000 shares of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock have been were issued and are outstanding and 27,437 outstanding; (B) no shares of Parent Preferred Stock have been were issued or are and outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are ; (C) no shares of Parent Common Stock were held by any Parent Subsidiary. None of the outstanding as treasury shares; (D) 3,649,191 shares of Parent Common Stock is entitled or were subject to any preemptive right, right of participation, right of maintenance or any similar right or subject issuance pursuant to any right of first refusal in favor of outstanding Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of Options; (or granting any option or similar right with respect to), any E) 5,065,717 shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract Stock were subject to issuance pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding Parent RSUs; and (F) no shares of Parent Common StockStock were subject to issuance pursuant to outstanding Parent PSUs (assuming achievement of the target level of performance for Parent PSUs at the end of the applicable performance period). (b) As of March 16, 20015:00 p.m. (California time) on the Parent Listing Date: (i) 5,875,000 17,978,267 shares of Parent Common Stock were reserved for future issuance pursuant to Parent’s 2014 Stock Option and Incentive Plan (assuming achievement of the target level of performance for Parent PSUs at the end of the applicable performance period); and (ii) 5,631,443 shares of Parent Common Stock were reserved for future issuance pursuant to the Parent ESPP. From 5:00 p.m. (California time) on the Parent Listing Date until the date of this Agreement, no shares of Parent Common Stock or Parent Preferred Stock have been issued except for shares of Parent Common Stock issued pursuant to the exercise of Parent Options or the vesting of Parent RSUs or Parent PSUs, in each case outstanding on the Parent Listing Date and in accordance with their terms. (c) All outstanding shares of Parent Common Stock are reserved for issuance pursuant to validly issued, fully paid, nonassessable and free of any preemptive rights. The authorized capital stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 of Merger Sub consists solely of 1,000 shares of common stock, par value $0.001 per share, 100 of which are outstanding as of the date of this Agreement. (d) Except (x) as set forth in Sections 3.2(a) and 3.2(b), (y) for the Convertible Notes and the Capped Calls and (z) for changes since 5:00 p.m. (California time) on the Parent Common Stock are outstanding; Listing Date resulting from the exercise of Parent Options outstanding on the Parent Listing Date or the vesting of Parent RSUs or Parent PSUs outstanding on the Parent Listing Date in accordance with their terms, as of the date of this Agreement: (iii) 350,000 Parent does not have any shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to capital stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are or other equity interests outstanding; and (ivii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (other than the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above, there is no: (iA) outstanding equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) issued or granted by Parent to acquire any shares of the capital stock or other securities of Parent; (iiB) outstanding security, instrument or obligation issued, granted or entered into by Parent that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; or (iiiC) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16the close of business on July 12, 20012018, the authorized capital stock of Parent consists of: (i) 35,000,000 125,000,000 shares of Parent Common Stock and (ii) 5,000,000 Stock, of which 26,085,274 shares of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding outstanding; and 27,437 (ii) 3,000,000 shares of Parent Preferred Stock Stock, of which no shares have been issued or are outstanding. No Parent holds 3,914,726 shares of its capital stock in its treasury, and none of the Parent Entities (other than Parent) holds any shares of Parent Common Stock or any rights to acquire shares of Parent Common Stock. From the close of business on July 12, 2018 to the date of this Agreement, there have been no issuances by Parent of shares of capital stock or voting securities of, or other equity interests in, Parent, other than the issuance of Parent are held Common Stock: (A) upon the exercise of Parent Warrants; or (B) upon the vesting or settlement of Parent RSUs, in Parent's treasuryeach case, that were outstanding at the close of business on July 12, 2018 and in accordance with their terms in effect at such time. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no The Parent Common Stock to be issued in the First Merger will be duly authorized, validly issued, fully paid and nonassessable. (b) Part 3.3(b) of the Parent Disclosure Schedule sets forth, as applicable, as of the date of this Agreement (i) the number of outstanding Parent Warrants, the number of shares of Parent Common Stock held by any subject thereto and the expiration date thereof, and (ii) the number of outstanding Parent Subsidiary. RSUs, the number of shares of Parent Common Stock subject thereto or issuable upon settlement or exercise thereunder, the grant dates and the vesting schedule. (c) None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participationrepurchase or forfeiture, right of maintenance or any similar right, except that the Parent Restricted Stock is subject to a right or of repurchase in favor of Parent. None of the outstanding shares of Parent Common Stock is subject to any right of first refusal in favor of Parent and there Parent. There is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor Stock or any securities of any Significant Subsidiary of Parent, any Parent Entity. None of the Parent Entities is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common StockStock or other securities. (bd) As of March 16the close of business on July 12, 2001: (i) 5,875,000 2018, no shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of constitute Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent OptionsRestricted Stock.") (ce) Except as set forth in Section 3.3(a), Section 3.3(b), Section 3.3(c) and Section 3.3(d) or (bin Part 3.3(e) aboveof the Parent Disclosure Schedule, as of the date of this Agreement, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) granted or issued by any Parent Entity to acquire any shares of the capital stock or other securities of Parentany of the Parent Entities; (ii) outstanding security, instrument or obligation of a Parent Entity that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parentany of the Parent Entities; (iii) outstanding or authorized stock appreciation rights, phantom stock, profit participation or similar rights agreement, or equity-based awards issued in each case by a Parent Entity with respect to any of the Parent Entities; or (iv) stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Parent Entities is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights"). (df) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares other securities of capital stock of each Subsidiary of the Parent Entities (including under the Parent Equity Plan), have been issued and granted in compliance with in all material respects with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all requirements set forth in applicable Contracts, except where the failure to be so issued and granted, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Parent Material Adverse Effect. As of July 12, 2018, 1,577,454 shares of Parent Common Stock are reserved for future issuance pursuant to equity awards not yet granted under the Parent Equity Plan. (g) All of the outstanding shares of capital stock of or other equity securities of, or other ownership interests in, each of the Parent’s Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying in the case of corporate Subsidiaries, nonassessable, and such shares, securities or interests are free of preemptive rights and are owned beneficially and of record by ParentParent (other than: (i) as expressly set forth in Part 3.3(g) of the Parent Disclosure Schedule; and (ii) with respect to those Subsidiaries of Parent organized under the laws of foreign jurisdictions where shares of capital stock or other equity securities or ownership interests are required under applicable Legal Requirements to be held by one or more directors, employees or agents of such Subsidiary, in each case as disclosed in Part 3.3(g) of the Parent Disclosure Schedule), free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessableEncumbrances (other than restrictions on transfer imposed by applicable securities laws).

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of the Parent consists of: (i) 35,000,000 100,000,000 shares of Parent Common Stock Stock, $0.001 par value per share, of which 15,049,808 shares are issued and are outstanding; and (ii) 5,000,000 shares of preferred stock. As Parent Preferred Stock, $0.001 par value per share, 1,321,514 of March 16, 2001, 17,429,183 shares of Parent Common Stock which have been designated as Series A Convertible Preferred Stock, $0.001 par value per share, 1,321,514 of which shares are issued and are outstanding and 27,437 shares of Parent Preferred Stock have been issued or are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no None of the ▇▇▇▇ Corporations (other than the Parent) holds any shares of Parent Common Stock held by or any rights to acquire shares of Parent Subsidiary. None Common Stock. (b) Except as set forth in Part 3.5(b) of the Parent Disclosure Schedule: (i) none of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right or right; (ii) none of the outstanding shares of Parent Common Stock is subject to any right of first refusal in favor of Parent the Parent; and (iii) there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary None of Parent, the ▇▇▇▇ Corporations is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common StockStock or other securities, except for the Parent’s right to repurchase or reacquire restricted shares of Parent Common Stock held by an employee of the Parent upon termination of such employee’s employment or upon any other forfeiture of a vesting condition. (bc) As of March 16, 2001the date of this Agreement: (i) 5,875,000 4,286,357 shares of Parent Common Stock are subject to issuance pursuant to Parent Options; and (ii) 13,681,118 shares of Parent Common Stock are reserved for future issuance pursuant to stock options equity awards not yet granted under Parent's 1997 the Parent Option Plans. (d) The Parent has delivered or Made Available to Company a complete and accurate list that sets forth with respect to each Parent Equity Incentive Plan and options Award outstanding as of the date of this Agreement the following information: (i) the particular plan (if any) pursuant to acquire 3,935,645 which such Parent Equity Award was granted; (ii) the name of the holder of such Parent Equity Award; (iii) the type of Parent Equity Award; (iv) the number of shares of Parent Common Stock are outstandingsubject to such Parent Equity Award; (iiv) 350,000 shares the per share exercise price (if any) of such Parent Equity Award; (vi) the applicable vesting schedule, and the extent to which such Parent Equity Award is vested and exercisable, if applicable; (vii) the date on which such Parent Equity Award was granted; (viii) the date on which such Parent Equity Award expires (if applicable); and (ix) if such Parent Equity Award is a Parent Option, whether such Parent Option is an “incentive stock option” (as defined in the Code) or a non-qualified stock option. The Parent has delivered or Made Available to the Company accurate and complete copies of all equity plans pursuant to which any outstanding Parent Equity Awards were granted by the Parent, and the forms of all agreements evidencing such Parent Equity Awards. The exercise price of each Parent Option is not less than the fair market value of a share of Parent Common Stock are reserved for issuanceas determined on the date of grant of such Parent Option. All grants of Parent Equity Awards were recorded on the Parent’s financial statements (including, any related notes thereto) contained in the Parent SEC Documents in accordance with GAAP, and an additional 350,000 subject no such grants involved any “back dating” or similar practices with respect to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares the effective date of Parent Common Stock are outstanding; grant (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"whether intentional or otherwise). (Stock options granted by Parent pursuant There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights or similar equity-based awards with respect to any of the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options▇▇▇▇ Corporations.") (ce) Except as set forth in Sections 3.5(a), 3.5(c) and 3.5(d), or as permitted from and after the date of this Agreement pursuant to Section 3.3(a) or (b) above4.3, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parentany of the ▇▇▇▇ Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parentany of the ▇▇▇▇ Corporations or that has the right to vote on any matter on which the stockholders of Parent have the right to vote; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent any of the ▇▇▇▇ Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may would reasonably be expected to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")any of the ▇▇▇▇ Corporations. (df) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares options and other Parent Equity Awards and other securities of capital stock of each Subsidiary of Parent the ▇▇▇▇ Corporations, have been issued and granted in compliance with in all material respects with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all requirements set forth in applicable Contracts. . (g) All of the outstanding shares of capital stock of each of the Parent’s Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable andand free of preemptive rights, except for directors' qualifying shareswith no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessableother than restrictions under applicable securities laws.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: of (i) 35,000,000 100,000,000 shares of Parent Common Stock, and (ii) 10,000,000 shares of preferred stock (with blank check preferred rights). After giving effect to the transactions contemplated by the Redemption Agreement, 13,200 shares of Parent Common Stock were issued and (ii) 5,000,000 shares of preferred stock. As of March 16, 2001, 17,429,183 outstanding and no shares of Parent Common Stock have been were held by Parent in its treasury. Such issued and are outstanding and 27,437 shares of Parent Preferred Stock have been issued or are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable, and are free of preemptive rights. There are During the period from October 21, 2016 to the date of this Agreement, (i) there have been no issuances by Parent of shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor capital stock of Parent and (ii) there is have been no issuances of any options, warrants or other rights to acquire capital stock of Parent. Except as expressly contemplated in the Redemption Agreement, Parent Contract relating has not, subsequent to October 21, 2016, declared or paid any dividend, or declared or made any distribution on, or authorized the voting creation or registration issuance of, or restricting issued, or authorized or effected any Person from purchasingsplit-up or any other recapitalization of, sellingany of its capital stock, pledging or directly or indirectly redeemed, purchased or otherwise disposing acquired any of (or granting its outstanding capital stock. Parent has not heretofore agreed to take any option or similar right with respect to)such action, any shares and there are no outstanding contractual obligations of Parent Common Stock. Neither Parent nor of any Subsidiary of Parentkind to redeem, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem purchase or otherwise acquire any outstanding shares of capital stock of Parent. Other than the Parent Common Stock, there are no outstanding bonds, debentures, notes or other indebtedness or securities of Parent having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of Parent may vote. Upon the consummation of the Merger and any applicable Contemplated Transactions, without derogating from any other warranty and/or representations set forth herein with respect to the Parent, the Entitled Shareholders shall hold, in the aggregate, the Parent Common Stock in an amount reflecting the Goal Holdings. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above), there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any there are no shares of capital stock or other voting securities of Parent issued, reserved for issuance or outstanding, and (items (iii) through (iv)there are no outstanding securities, collectivelyoptions, "warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Parent Stock Rights")and/or Merger Sub is a party or by which it is bound obligating Parent and/or Merger Sub to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of Parent and/or Merger Sub or obligating Parent to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. (dc) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares of capital stock of each Subsidiary other securities of Parent and/or Merger Sub have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, Requirement applicable to Parent and/or Merger Sub; and (ii) all material requirements set forth in applicable Contracts. All of Contracts to which Parent and/or Merger Sub is a party. (d) Any and all Parent Common Stock to be issued to the outstanding shares of capital stock of each of Entitled Shareholders and/or are otherwise issuable and/or reserved with respect to future issuance in connection with the Subsidiaries of Parent have been Contemplated Transactions (including without limitations, those prescribed under Section 1.5), are (or shall be upon issuance) duly authorized and are validly issued, are fully paid and nonassessable andnonassessable, except for directors' qualifying sharesand are free of preemptive rights, are owned beneficially and anti-dilution, right of record by Parent, free and clear of first refusal and/or any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessableother similar contingency.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (ia) 35,000,000 150,000,000 shares of Parent Common Stock, of which 77,637,647 shares (excluding shares of Parent Common Stock held in treasury) were outstanding as of October 15, 1996; and (iib) 5,000,000 2,000,000 shares of preferred stock. As Preferred Stock, $0.01 par value per share, of March 16, 2001, 17,429,183 which no shares of Parent Common Stock have been issued and are outstanding and 27,437 shares as of Parent Preferred Stock have been issued or are outstanding. No shares the date of capital stock of Parent are held in Parent's treasurythis Agreement. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no As of October 15, 1996: (i) 9,562,052 shares of Parent Common Stock were reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1987 Stock Option Plan, as amended; (ii) 9,374,978 shares of Parent Common Stock were reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1993 Nonstatutory Stock Option Plan; (iii) 123,750 shares of Parent Common Stock were reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1988 Directors Stock Option Plan; (iv) 191,250 shares of Parent Common Stock were reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1993 Directors Stock Option Plan; (v) 315,000 shares of Parent Common Stock were reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1995 Directors Stock Option Plan; (vi) 128,028 shares of Parent Common Stock were reserved for future issuance pursuant to stock options granted and outstanding other than under the stock option plans referred to in clauses "(i)" through "(v)" of this Section 3.2; (vii) 1,347,149 shares of Parent Common Stock were reserved for future issuance under Parent's 1990 Employee Stock Purchase Plan; (viii) 120,000 shares of Parent Common Stock were reserved for future issuance pursuant to outstanding warrants to purchase shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding Comdisco Systems, Inc.; and (ix) 2,433,002 shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are were reserved for future issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan certain outstanding put warrants and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP")call options. (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding options to purchase shares of Parent Options Common Stock, and all outstanding shares of capital stock of each Subsidiary subsidiary of Parent 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 Contracts. All of . (b) Between October 15, 1996 and the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions date of this Agreement, be validly issuedthere has been: (i) no material change in the number of outstanding shares of Parent Common Stock (other than as a result of the exercise of options referred to in Section 3.2(a)); and (ii) no change in the number of shares of Parent Common Stock reserved for future issuance under the stock option plans or the stock purchase plan referred to in Section 3.2(a). (c) As of the date of this Agreement: (i) there are no outstanding options or rights to purchase shares of Parent Common Stock, fully paid other than the options, warrants and nonassessable.other rights referred to in Section 3.2(a), certain options granted between October 15, 1996 and the date of this Agreement under the stock option plans referred to in Section 3.2(a) and the rights outstanding under that certain Rights Agreement dated as of February 9, 1996 between Parent and ▇▇▇▇▇▇ Trust and Savings Bank; and (ii) Parent is not obligated to issue any shares of Parent Common Stock or any rights to acquire shares of Parent Common Stock, other than pursuant to (A) the options, warrants and rights referred to in Section 3.2(a) and certain options granted between October 15, 1996 and the date of this Agreement under the stock option plans referred to in Section 3.2(a), (B) the rights outstanding under that certain Rights Agreement dated as of February 9, 1996 between Parent and ▇▇▇▇▇▇ Trust and Savings Bank, (C) the terms of this Agreement or any other agreement referred to in this Agreement, and (D) that certain Agreement and Plan of Merger and Reorganization dated as of October 3, 1996, among Parent, Harbor Acquisition Sub, Inc. and High Level Design Systems, Inc.

Capitalization, Etc. (a) As of March 16June 18, 2001, the authorized capital stock of Parent consists of: (i) 35,000,000 200,000,000 shares of Parent Common Stock and (ii) 5,000,000 shares of preferred stockParent Preferred Stock. As of March 16June 18, 2001, 17,429,183 54,313,381 shares of Parent Common Stock have been issued and are outstanding and 27,437 outstanding, 689,978 shares of Parent Cumulative Preferred Stock have been issued or are outstanding and no shares of Parent Series A Preferred Stock are issued and outstanding. No As of June 18, 2001, 610,622 shares of capital stock of Parent Common Stock are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options Stock 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 Legal Requirements, and (ii) all requirements set forth in applicable Parent Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Offer and the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessablenonassessable and in compliance with all applicable securities laws and other applicable Legal Requirements. The shares of Parent Common Stock to be issued upon exercise of Company Options assumed by Parent in connection with the Offer and the Merger will, when issued, be issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Parent Contracts.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 50,000,000 shares of Parent Common Stock and (ii) 5,000,000 500,000 shares of preferred stockParent Preferred Stock. Parent has not authorized any other class of capital stock other than the Parent Common Stock and Parent Preferred Stock. As of March 16October 21, 20012003, 17,429,183 13,270,758 shares of Parent Common Stock have been issued and are outstanding and 27,437 no shares of Parent Preferred Stock have been issued or are outstanding. No shares of capital stock of Parent Common Stock are held in Parent's treasury’s treasury or are held by any of Parent’s Subsidiaries. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent. There is no Contract to which Parent and is a party and, to Parent’s knowledge, there is no Parent Contract between other Persons, relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to)of, any shares of Parent Common StockStock other than the Parent Voting Agreements. Neither Parent nor any Subsidiary None of Parent, the SafeNet Corporations is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16October 22, 20012003: (i) 5,875,000 269,404 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and the 1999 Employee Stock Option Plan, of which options to acquire 3,935,645 251,201 shares of Parent Common Stock are outstanding; (ii) 350,000 18,203 shares of Parent Common Stock are reserved for issuanceissuance under the 1999 Stock Bonus Plan, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 of which no shares of Parent Common Stock are outstanding; (iii) 6,000,000 79,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and stock options under the Non-Employee Director Stock Option Plan, of which options to acquire 3,998,183 69,000 shares of Parent Common Stock are outstanding; (iv) 1,950,670 shares of Parent Common Stock are reserved for issuance pursuant to stock options under the 2001 Omnibus Stock Option Plan, of which options to acquire 1,468,048 shares of Parent Common Stock are outstanding; (v) 105,330 shares of Parent Common Stock are reserved for issuance pursuant to stock options under the 1989 Stock Option Plan, of which options to acquire 99,204 shares of Parent Common Stock are outstanding; (vi) 26,449 shares of Parent Common Stock are reserved for issuance pursuant to stock options under the Cylink Restated 1994 Flexible Stock Incentive Plan, of which options to acquire 24,378 shares of Parent Common Stock are outstanding; (vii) 616 shares of Parent Common Stock are reserved for issuance pursuant to stock options under the Cylink/ARL 1997 Stock Option Plan, of which options to acquire 616 shares of Parent Common Stock are outstanding; (viii) 1050 shares of Parent Common Stock are reserved for issuance pursuant to stock options under the Cylink 2001 Nonqualified Stock Incentive Plan, of which options to acquire 1050 shares of Parent Common Stock are outstanding; and (ivix) 350,000 186,383 shares of Parent Common Stock are reserved available for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 purchase under the 2000 Employee Stock Purchase Plan (the "“Parent ESPP"”). (Stock options granted by Parent pursuant to the Parent Stock Option Plans, as well as any stock options granted by Parent outside of the Parent Stock Option Plans or otherwise (but excluding the Parent ESPP), are referred to collectively herein as "“Parent Options.")” Schedule 3.3(b) of the Parent Disclosure Schedule sets forth the following information with respect to each Parent Option outstanding as of October 21, 2003: (i) [intentionally omitted]; (ii) the name of the optionee; (iii) the number of shares of Parent Common Stock subject to such Parent Option and the number of such shares that have been exercised; (iv) the current exercise price of such Parent Option; (v) the date on which such Parent Option was granted; (vi) the extent to which such Parent Option is vested and exercisable as of the date of this Agreement; (vii) the vesting schedule of such Parent Option including any acceleration of vesting upon a change in control of Parent; (viii) the expiration date of the Parent Option; and (ix) the period of time following termination of employment during which the Parent Option may be exercised if not expired. Parent has delivered or made available to Company accurate and complete copies of the Parent ESPP, all stock option plans pursuant to which Parent has granted Parent Options, and the forms of all stock option agreements evidencing such options. There have been no repricings of any Parent Options through amendments, cancellation and reissuance or other means during the current or prior two calendar years. None of the Company Options have been granted in contemplation of the Merger or the transactions contemplated in this Agreement. (c) Except as set forth in Section 3.3(a) or (bSection 3.3(b) above, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parentany of the SafeNet Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parentany of the SafeNet Corporations; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”); or (iv) or Contract under which Parent is any of the SafeNet Corporations are or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or securities (iv“Parent Rights Agreements”) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv)) above, collectively, "“Parent Stock Rights"”). (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in Contracts applicable Contractsto the issuance of Parent Common Stock, granting Parent Options and/or the issuance of shares of capital stock of any Parent Subsidiary. All of the outstanding shares of capital stock of each of the Parent’s Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying sharesas required by Legal Requirements applicable to each of the SafeNet Corporations which is formed or incorporated under the laws of a foreign jurisdiction, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Schedule 3.3(d) sets forth all entities (other than Subsidiaries) in which any of the SafeNet Corporations has any ownership interest and the amount of such interest. (e) Parent Common Stock to be issued in owns directly all of the outstanding stock of Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessableSub.

Capitalization, Etc. (a) As of March 16, 2001the date of this Agreement, the authorized capital stock of Parent consists of: (i) 35,000,000 180,000,000 shares of Parent Common Stock Stock; and (ii) 5,000,000 2,000,000 shares of preferred stockPreferred Stock, $.01 par value per share. As of March 16August 24, 20012000, 17,429,183 125,768,295 shares of Parent Common Stock have been issued and are outstanding and 27,437 no shares of Parent Parent's Preferred Stock have been issued or are outstanding. No As of the date hereof, no shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16August 24, 20012000: (i) 5,875,000 15,482,750 shares of Parent Common Stock are reserved for subject to issuance pursuant to stock options granted and outstanding under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 1992 Stock Option Plan; (ii) 391,666 shares of Parent Common Stock are outstandingsubject to issuance pursuant to stock options granted and outstanding under Parent's 1997 Directors' Stock Option Plan; (iiiii) 350,000 2,664 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, issuance pursuant to stock options under granted and outstanding Parent's 1997 Non-1982 Employee Directors' Incentive Stock Option Plan and options to acquire 270,000 Plan; (iv) 225,201 shares of Parent Common Stock are outstandingsubject to issuance pursuant to Parent's Cimaron 1998 Stock Incentive Plan; (iiiv) 6,000,000 3,697,029 shares of Parent Common Stock are subject to issuance pursuant to stock options granted and outstanding Parent's 2000 Equity Incentive Plan; (vi) 133,722 shares of Parent Common Stock are subject to stock options granted and outstanding under Parent's YuniNetwork's 1999 Equity Incentive Plan; and (vii) 53,328 shares of Parent Common Stock are subject to issuance under various other outstanding stock option agreements. In addition as of August 24, 2000, (i) 24,504 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan Plan, and (the "Parent ESPP")ii) 1,163,858 shares are reserved for issuance under Parent's 1998 Employee Stock Purchase Plan. (Stock options granted by Parent pursuant to the Parent 1992 Stock Option Plans or otherwise Plan, 1997 Directors' Stock Option Plan, 1982 Employee Incentive Stock Option Plan, Parent's Cimaron 1998 Stock Incentive Plan, Parent's 2000 Equity Incentive Plan and other options outstanding to purchase Parent Common Stock are referred to collectively herein as "Parent Options."). (c) Except as set forth in Section Sections 3.3(a) or (b) above3.3(b), as of August 24, 2000, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")Parent. (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 25,000,000 shares of Parent Common Stock and (ii) 5,000,000 par value $0.001 per share), of which 11,101,554 shares of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding on the date of this Agreement and 27,437 (ii) 2,000,000 shares of Parent Preferred Stock have convertible preferred stock (par value $0.001 per share), of which no share has been issued or are and is outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and non-assessable. Part 3.3 of the Parent Disclosure Schedule provides an accurate and complete description of the terms of each repurchase option that is held by Parent and to which any of such shares is subject. All of the outstanding shares of Merger Sub have been duly authorized and validly issued, are fully paid and nonassessable. There , and are no owned beneficially and of record by Parent. (b) Parent has reserved 4,528,950 shares of Parent Common Stock held by any for issuance under the Parent SubsidiaryOption Plans, of which 2,983,287 shares are reserved for issuance upon exercise of outstanding options. None of the outstanding Parent has reserved 1,030,000 shares of Parent Common Stock is entitled or subject to any preemptive rightfor issuance upon exercise of the Parent Warrants. Part 3.3(b) of the Parent Disclosure Schedule accurately sets forth, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares to each Parent Option and Parent Warrant that is outstanding as of Parent Common Stock. Neither Parent nor any Subsidiary the date of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001this Agreement: (i) 5,875,000 the name of the holder of such Parent Option or Parent Warrant; (ii) the total number of shares of Parent Common Stock that are reserved for issuance pursuant subject to stock options under Parent's 1997 Equity Incentive Plan such Parent Option or Parent Warrant and options to acquire 3,935,645 the number of shares of Parent Common Stock are outstandingwith respect to which such Parent Option or Parent Warrant is immediately exercisable; (iiiii) 350,000 shares the date on which such Parent Option or Parent Warrant was granted and the term of such Parent Option or Parent Warrant; (iv) the vesting schedule for such Parent Option; (v) the exercise price per share of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options purchasable under Parent's 1997 Non-Employee Directors' Stock such Parent Option Plan and options to acquire 270,000 shares of or Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstandingWarrant; and (ivvi) 350,000 shares whether such Parent Option has been designated an “incentive stock option” as defined in Section 422 of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP")Code. (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in this Section 3.3(a3.3(b) or (b) aboveand in Section 5.14, other than this Agreement, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) to the knowledge of Parent, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")Parent. (dc) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares of capital stock of each Subsidiary of Parent Warrants have been issued or granted, and granted the warrants described in Section 5.14 will be 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 Contracts. All of the outstanding . (d) Since October 31, 2005, Parent has not repurchased, redeemed or otherwise reacquired any shares of capital stock or other securities of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16August 9, 20012007, the authorized capital stock of Parent consists of: (i) 35,000,000 500,000,000 shares of Parent Common Stock and (ii) 5,000,000 shares Stock, of preferred stock. As of March 16, 2001, 17,429,183 which 194,754,373 shares of Parent Common Stock have been issued and are outstanding were outstanding; and 27,437 (ii) 5,000,000 shares of Parent Preferred Stock Stock, of which no shares have been issued or are were outstanding. No shares As of capital stock of Parent are held in Parent's treasury. All of the outstanding August 9, 2007: (A) 3,261,480 shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no were reserved for future issuance pursuant to Parent’s Employee Stock Purchase Plan (the “Parent ESPP”); (B) 28,227,635 shares of Parent Common Stock held by any were reserved for issuance pursuant to the exercise of outstanding awards, warrants and other rights to acquire shares of Parent Subsidiary. Common Stock; and (C) 13,456,031 shares of Parent Common Stock were reserved for future issuance pursuant to awards not yet granted under P▇▇▇▇▇’s equity incentive and stock option plans. (b) (A) None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and right; (B) there is no Contract to which Parent Contract is a party relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Parent Common Stock. Neither ; and (C) Parent nor any Subsidiary of Parent, is not under any obligation, or nor is Parent bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16Stock or other securities, 2001: (i) 5,875,000 except for Parent’s rights pursuant to its equity incentive plans and director stock option plans to repurchase, redeem or otherwise acquire restricted shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 or other securities held by participants in such plans. (c) All of the outstanding shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuancehave been duly authorized and validly issued, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan are fully paid and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Optionsnonassessable.") (cd) Except as set forth in Section 3.3(a) or (b) above3.2(a), as of the date of this Agreement, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; or (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights"). (de) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares awards and other securities of capital stock of each Subsidiary of Parent Parent, have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all material requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001the date of this Agreement, the authorized capital stock of Parent consists of: (i) 35,000,000 400,000,000 shares of Parent Common Stock; and (ii) 2,000,000 shares of preferred stock, $0.01 par value per share (“Parent Preferred Stock”). As of 5:00 p.m. (California time) on January 12, 2024 (the “Parent Listing Date”): (A) 152,521,036 shares of Parent Common Stock were issued and outstanding (iiinclusive of 4,806 Parent Restricted Shares); (B) 5,000,000 no shares of preferred stock. As of March 16, 2001, 17,429,183 Parent Preferred Stock were issued and outstanding; (C) 4,739,740 shares of Parent Common Stock have been issued and are outstanding and 27,437 shares of were held by Parent Preferred Stock have been issued or are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding as treasury shares; (D) 1,646,475 shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no were subject to issuance pursuant to outstanding Parent Options; (E) 4,370,282 shares of Parent Common Stock held by any were subject to issuance pursuant to outstanding Parent Subsidiary. None of the outstanding RSUs; and (F) 184,464 shares of Parent Common Stock is entitled or were subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract issuance pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares Parent PSUs (assuming achievement of the target level of performance for Parent Common StockPSUs at the end of the applicable performance period). (b) As of March 16, 20015:00 p.m. (California time) on the Parent Listing Date: (i) 5,875,000 12,388,522 shares of Parent Common Stock are were reserved for future issuance pursuant to stock options under Parent's 1997 ’s 2006 Employee Equity Incentive Plan and options to acquire 3,935,645 (assuming achievement of the target level of performance for Parent PSUs at the end of the applicable performance period); (ii) 368,407 shares of Parent Common Stock are outstandingwere reserved for future issuance pursuant to Parent’s 2017 Non-Employee Directors Equity Incentive Plan; and (iiiii) 350,000 13,486,609 shares of Parent Common Stock are were reserved for issuance, and an additional 350,000 subject to stockholder approval, future issuance pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 the Parent ESPP. (c) All shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares issuable in the Merger will be when issued in accordance with the terms of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan this Agreement, duly authorized, validly issued, fully paid, nonassessable and options to acquire 3,998,183 shares free of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Optionsany preemptive rights.") (cd) Except As of the date of this Agreement, except (x) as set forth in Sections 3.2(a) and Section 3.3(a3.2(b), (y) for the Parent ESPP, and (z) for changes since 5:00 p.m. (California time) on the Parent Listing Date resulting from the exercise of Parent Options outstanding on the Parent Listing Date or (b) abovethe vesting of Parent RSUs or Parent PSUs outstanding on the Parent Listing Date in accordance with their terms, there is no: (i) outstanding equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) issued or granted by Parent to acquire any shares of Parent Common Stock to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation issued, granted or entered into by Parent that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of ParentParent Common Stock; or (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock Parent Common Stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (aA) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 60,000,000 shares of Parent Common Stock Stock, of which 14,215,003 shares had been issued and were outstanding as of March 5, 2004; and (ii) 5,000,000 shares of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding and 27,437 3,000,000 shares of Parent Preferred Stock have Stock, of which no shares had been issued or are outstandingand were outstanding as of March 5, 2004. No Parent has not repurchased any shares of its capital stock of Parent are held in Parent's treasurysubsequent to March 5, 2004. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance first offer or any similar right created by Parent or imposed under applicable law with respect to capital stock of Parent. None of the outstanding shares of Parent Common Stock is subject to any right of first refusal in favor of Parent and there Parent. There is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is not under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (bB) As of March 165, 20012004: (i) 5,875,000 3,288,696 shares of Parent Common Stock are reserved for were subject to issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and outstanding options to acquire 3,935,645 purchase shares of Parent Common Stock; and (ii) 116,865 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are were reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for future issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent OptionsPlan.") (cC) Except as set forth in Section 3.3(a) or (b) above3.3(b), as of March 5, 2004, there is was no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.acquire

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 100,000,000 shares of Parent Common Stock; and (ii) 1,000,000 shares of Parent Preferred Stock. As of April 27, 2001, 60,293,702 shares of Parent Common Stock were issued and (ii) 5,000,000 shares of preferred stockoutstanding. As of March 16the date of this Agreement, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding and 27,437 no shares of Parent Preferred Stock have been are issued or are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001the date of this Agreement: (i) 5,875,000 1,548,821 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common 1991 Stock are outstandingOption Plan; (ii) 350,000 1,884,998 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, future issuance pursuant to stock options granted and outstanding under Parent's 1997 Non-Employee Directors' 1994 Stock and Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstandingPlan; (iii) 6,000,000 8,037,900 shares of Parent Common Stock are reserved for issuance future issuance, pursuant to stock options granted and outstanding under Parent's 1999 Equity Incentive Plan 1996 Stock and options to acquire 3,998,183 shares of Parent Common Stock are outstandingOption Plan; and (iv) 350,000 342,517 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, future issuance pursuant to Parent's 1997 Employee Stock Purchase Plan and (v) 3,739,432 shares of Parent Common Stock are reserved for future issuance upon the "conversion of Parent's outstanding 5% Convertible Subordinated Notes due 2007. Parent ESPP"). (Stock options granted by Parent has made available to the Company accurate and complete copies of all stock option plans pursuant to which Parent has ever granted stock options, and the forms of all stock option agreements evidencing such options. As the date of this Agreement, there are outstanding options to purchase 11,480,085 shares of Parent Common Stock. Parent has no present intention to issue any shares of Parent capital stock or other securities other than pursuant to: (i) the exercise or conversion of outstanding options, warrants or other rights (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent, (ii) to Parent's Employee Stock Option Plans or otherwise are referred Purchase Plan and 401(k) Plan, (iii) upon the conversion of any Parent's outstanding 5% Convertible Subordinated Notes due 2007; and (iv) upon the exercise of options to collectively herein as "purchase Parent OptionsCommon Stock issued after the date of this Agreement under existing option plans of Parent in the ordinary course of business and consistent with past practice.") (c) Except as set forth in Section 3.3(a3.4(c) or (b) aboveof the Parent Disclosure Schedule, there is no: no (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) to the knowledge of Parent, condition or circumstance that may would reasonably be expected to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")Parent. (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares of The authorized capital stock of each Subsidiary Merger Sub consists of Parent have been 3,000 shares of common stock, of which 100 are issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contractsoutstanding. All of the outstanding shares of capital Merger Sub common stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, and are fully paid and nonassessable and, except for directors' qualifying shares, are nonassessable. Merger Sub is a wholly-owned beneficially and subsidiary of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 100,000,000 shares of Parent Common Stock and (ii) 5,000,000 Stock, of which 49,511,273 shares of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding as of October 31, 2001; and 27,437 (ii) 10,000,000 A-16 shares of Parent Preferred Stock have been issued or Stock, of which no shares are outstanding. No Parent does not hold any shares of its capital stock of Parent are held in Parent's its treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There As of the date of this Agreement, there are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16October 31, 2001: (i) 5,875,000 1,017,799 shares of Parent Common Stock reserved for future issuance pursuant to stock options granted and outstanding under Parents' 1997 Equity Incentive Plan; (ii) 4,258,580 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1997 2000 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstandingPlan; (iiiii) 350,000 295,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, future issuance pursuant to stock options granted and outstanding under Parent's 1997 2000 Non-Employee Directors' Director's Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstandingPlan; (iiiiv) 6,000,000 376,303 shares of Parent Common Stock are reserved for future issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common 2000 Employee Stock are outstandingPurchase Plan; and (ivv) 350,000 581,793 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, future issuance pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock stock options granted by and outstanding under the Agritope, Inc. 1997 Stock Award Plan; (vi) 461,265 shares of Parent pursuant to Common Stock are reserved for future issuance upon the Parent Stock Option Plans exercise of put or otherwise are referred to collectively herein as "Parent Options.")call options arising out of the acquisition of Artemis Pharmaceuticals GmbH. (c) Except as set forth in Section 3.3(a) or (b) aboveAll outstanding capital stock, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or options and other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. . (d) All of the outstanding shares of capital stock of each the corporations identified in Part 4.1 of the Subsidiaries of Parent Disclosure Schedule have been duly authorized and are validly issued, are fully paid and nonassessable andand free of preemptive rights, except for directors' qualifying shareswith no personal liability attaching to the ownership thereof, and are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001After giving effect to the Parent Restated Charter, the authorized capital stock of Parent consists of: of (i) 35,000,000 100,000,000 shares of Parent Common Stock, par value $0.00001 and (ii) 10,000,000 shares of Parent Preferred Stock, par value $0.00001. After giving effect to the transactions contemplated by the Redemption Agreement, 7,336 shares of Parent Common Stock were issued and (ii) 5,000,000 shares of preferred stock. As of March 16outstanding, 2001, 17,429,183 no shares of Parent Common Stock have been issued were held by Parent in its treasury, and are outstanding and 27,437 no shares of Parent Preferred Stock have been issued or are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the The issued and outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable, and are free of preemptive rights. There are During the period from September 16, 2013 to the date of this Agreement, (i) there have been no issuances by Parent of shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor capital stock of Parent and (ii) there is have been no issuances of any options, warrants or other rights to acquire capital stock of Parent. Except as expressly contemplated in the Redemption Agreement, Parent Contract relating has not, subsequent to September 16, 2013, declared or paid any dividend, or declared or made any distribution on, or authorized the voting creation or registration issuance of, or restricting issued, or authorized or effected any Person from purchasingsplit-up or any other recapitalization of, sellingany of its capital stock, pledging or directly or indirectly redeemed, purchased or otherwise disposing acquired any of (or granting its outstanding capital stock. Parent has not heretofore agreed to take any option or similar right with respect to)such action, any shares and there are no outstanding contractual obligations of Parent Common Stock. Neither Parent nor of any Subsidiary of Parentkind to redeem, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem purchase or otherwise acquire any outstanding shares of capital stock of Parent. Other than the Parent Common Stock, there are no outstanding bonds, debentures, notes or other indebtedness or securities of Parent having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of Parent may vote. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above), there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any there are no shares of capital stock or other voting securities of Parent issued, reserved for issuance or outstanding, and (items (iii) through (iv)there are no outstanding securities, collectivelyoptions, "warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Parent Stock Rights")is a party or by which it is bound obligating Parent to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of Parent or obligating Parent to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. (dc) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares of capital stock of each Subsidiary other securities of Parent have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, Requirement applicable to Parent; and (ii) all material requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Contracts to which Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessableis a party.

Capitalization, Etc. (a) As of March 16August 9, 20012007, the authorized capital stock of Parent consists of: (i) 35,000,000 500,000,000 shares of Parent Common Stock and (ii) 5,000,000 shares Stock, of preferred stock. As of March 16, 2001, 17,429,183 which 194,754,373 shares of Parent Common Stock have been issued and are outstanding were outstanding; and 27,437 (ii) 5,000,000 shares of Parent Preferred Stock Stock, of which no shares have been issued or are were outstanding. No shares As of capital stock of Parent are held in Parent's treasury. All of the outstanding August 9, 2007: (A) 3,261,480 shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no were reserved for future issuance pursuant to Parent’s Employee Stock Purchase Plan (the “Parent ESPP”); (B) 28,227,635 shares of Parent Common Stock held by any were reserved for issuance pursuant to the exercise of outstanding awards, warrants and other rights to acquire shares of Parent Subsidiary. Common Stock; and (C) 13,456,031 shares of Parent Common Stock were reserved for future issuance pursuant to awards not yet granted under Parent’s equity incentive and stock option plans. (b) (A) None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and right; (B) there is no Contract to which Parent Contract is a party relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Parent Common Stock. Neither ; and (C) Parent nor any Subsidiary of Parent, is not under any obligation, or nor is Parent bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16Stock or other securities, 2001: (i) 5,875,000 except for Parent’s rights pursuant to its equity incentive plans and director stock option plans to repurchase, redeem or otherwise acquire restricted shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 or other securities held by participants in such plans. (c) All of the outstanding shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuancehave been duly authorized and validly issued, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan are fully paid and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Optionsnonassessable.") (cd) Except as set forth in Section 3.3(a) or (b) above3.2(a), as of the date of this Agreement, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; or (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights"). (de) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares awards and other securities of capital stock of each Subsidiary of Parent Parent, have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all material requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent DPI consists of: (i) 35,000,000 100,000,000 shares of Parent DPI Common Stock and (ii) 5,000,000 1,000,000 shares of preferred stockPreferred Stock, par value $.001 per share. As of March 16April 7, 20012006, 17,429,183 26,436,931 shares of Parent DPI Common Stock have been issued and are outstanding outstanding, and 27,437 no shares of Parent DPI Preferred Stock have been issued or and are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent DPI Common Stock have been duly authorized and validly issued, and are fully paid and nonassessablenon assessable. There DPI has no authorized shares other than as set forth in this Section 3.3(a) and there are no shares of Parent Common Stock held by any Parent Subsidiary. None of the issued and outstanding shares of Parent DPI’s capital stock other than the shares of DPI Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal as set forth in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect tothis Section 3.3(a), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16April 7, 2001: (i) 5,875,000 2006, DPI has reserved 6,297,374 shares of Parent DPI Common Stock for issuance under its DPI 2000 Stock Incentive Plan, of which options to purchase 2,103,961 shares of DPI Common Stock are outstanding as of April 7, 2006. As of April 7, 2006, DPI has reserved 2,498,032 shares of DPI Common Stock for issuance under its DPI 2000 Employee Stock Purchase Plan, of which 181,202 shares of DPI Common Stock are outstanding as of April 7, 2006. As of April 7, 2006, 424,500 shares of DPI Common Stock are reserved for future issuance pursuant to grants of restricted stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP")DPI. (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) abovethis Agreement and the Contemplated Transactions, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of ParentDPI; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of ParentDPI; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent DPI is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securitiessecurities of DPI; or (iv) condition or circumstance that may would give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv)DPI. DPI has not issued any debt securities which grant the holder thereof any right to vote on, collectivelyor veto, "Parent Stock Rights")any action of DPI. (dc) All outstanding shares of Parent DPI Common Stock, all outstanding Parent Options and all outstanding shares of capital stock of each Subsidiary of Parent DPI 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 DPI Constituent Documents and applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 of 500,000,000 shares of Parent Common Stock and (ii) 5,000,000 10,000,000 shares of preferred stock. As of March 16May 31, 20012000, 17,429,183 (i) 137,939,221 shares of Parent Common Stock have been were issued and are outstanding and 27,437 no shares of preferred stock were issued and outstanding; (ii) Parent had reserved an additional 21,029,051 shares of Parent Preferred Common Stock have been issued or are outstanding. No for issuance under Parent's employee equity incentive plans, of which options to acquire 18,222,310 shares of capital stock Parent Common Stock were outstanding; (iii) Parent had reserved 3,000,000 shares of Parent are held in Common Stock for purchase under Parent's treasury. All employee stock purchase plan; (iv) Parent had reserved an additional 1,626,346 shares of Parent Common Stock for issuance upon exercise of outstanding warrants; and (v) all of the issued and outstanding shares of Parent Common Stock have had been duly authorized and validly issued, issued and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is not under any obligation, or is nor bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above, as of May 31, 2000 there is was no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent, except for shares of Parent Common Stock issued in connection with the acquisition of CO Space, Inc. pursuant to that certain Agreement and Plan of Merger and Reorganization, dated as of May 26, 2000, as amended; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; securities or (iv) to the Knowledge of Parent, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent ALC consists of: of Ten Thousand (i10,000) 35,000,000 shares of Parent Common Stock and common stock, no par value, of which Five Thousand Three Hundred (ii5,300) 5,000,000 shares (constituting all of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock the Shares) have been issued and are outstanding and 27,437 shares as of Parent Preferred Stock have been issued or are outstanding. No shares the date of capital stock of Parent are held in Parent's treasury. this Agreement. (b) All of the outstanding shares of Parent Common Stock Shares (i) have been duly authorized and validly issued, and (ii) are fully paid and nonassessablenon-assessable, and (iii) have been issued in full compliance with all applicable securities laws and other applicable Legal Requirements. There are no shares ALC has delivered to the Purchaser accurate and complete copies of Parent Common Stock held by any Parent Subsidiarythe stock certificates evidencing the Shares. None Part 2.3 of the Disclosure Schedule accurately lists all of the holders of the outstanding capital stock of ALC and the number of shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound held by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stockthem. (bc) As Part 2.3 of March 16the Disclosure Schedule accurately sets forth, 2001with respect to each Option: (i) 5,875,000 shares the name of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares the holder of Parent Common Stock are outstandingsuch Option; (ii) 350,000 the total number of shares of Parent Common Stock the common stock of ALC that are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock such Option Plan and options to acquire 270,000 the number of shares of Parent Common Stock are outstandingcommon stock with respect to which such Option is immediately exercisable (assuming consummation of the transaction contemplated by this Agreement); (iii) 6,000,000 shares the date on which such Option was granted and the term of Parent Common Stock are reserved such Option; (iv) the vesting schedule for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares such Option; (v) the exercise price per share of Parent Common Stock are outstandingcommon stock purchasable under such Option; and (ivvi) 350,000 shares whether such Option has been designated an “incentive stock option” as defined in Section 422 of Parent Common Stock are reserved for issuance, the Code. ALC has delivered to Purchaser accurate and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (complete copies of the "Parent ESPP"). (Stock options granted by Parent pursuant to documents evidencing the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (cd) Except as set forth All of the Options have been duly authorized and validly issued and have been issued in Section 3.3(afull compliance with all applicable securities laws and other applicable Legal Requirements. (e) or (b) aboveOther than the Options, there is no: : (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; ALC; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; ALC; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent ALC is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or or (iv) condition or circumstance that may directly or indirectly give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")ALC. (df) All outstanding shares of Parent Common StockALC has never repurchased, all outstanding Parent Options and all outstanding redeemed or otherwise reacquired any shares of capital stock of each Subsidiary of Parent have been issued and granted in compliance with (i) all applicable securities laws and or other applicable Legal Requirementssecurities, and (ii) all requirements except as set forth in applicable Contracts. All Part 2.3(f) of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessableDisclosure Schedule.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: of (i) 35,000,000 200,000,000 shares of Parent Common Stock, par value $0.001 per share and (ii) 10,000,000 shares of Parent Preferred Stock, par value $0.001 per share. As of the close of business on May 7, 2010: (A) 44,257,042 shares of Parent Common Stock were issued and outstanding; (B) no shares of Parent Preferred Stock were issued or outstanding; (C) no shares of Parent Common Stock were held by Parent in its treasury; (D) there were outstanding Parent Options to purchase 5,844,329 shares of Parent Common Stock and (ii) 5,000,000 shares outstanding unvested restricted stock units of preferred stock. As of March 16, 2001, 17,429,183 2,011,146 shares of Parent Common Stock have been issued and are outstanding and 27,437 1,532,582 shares of Parent Preferred Common Stock have been issued or are outstanding. No were reserved for issuance under the Parent’s Stock Plans (including upon exercise of the Parent Options); and (E) there were no outstanding warrants exercisable for shares of capital stock Parent Common Stock and such number of shares of Parent are held in Parent's treasuryCommon Stock were reserved for issuance upon conversion of such warrants. All of the Such issued and outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable, and are free of preemptive rights. There are During the period from May 7, 2010 to the date of this Agreement, (1) there have been no issuances by Parent of shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares capital stock of Parent Common Stock is entitled or subject to any preemptive right, right other than issuances of participation, right of maintenance or any similar right or subject to any right of first refusal in favor capital stock of Parent and there is no Parent Contract relating pursuant to the voting exercise of Parent Options outstanding on such date and (2) there have been no issuances of Parent Options or registration other options, warrants or other rights to acquire capital stock of Parent. Parent has not, subsequent to May 7, 2010, declared or paid any dividend, or declared or made any distribution on, or authorized the creation or issuance of, or restricting issued, or authorized or effected any Person from purchasingsplit-up or any other recapitalization of, sellingany of its capital stock, pledging or directly or indirectly redeemed, purchased or otherwise disposing acquired any of (or granting its outstanding capital stock. Parent has not heretofore agreed to take any option or similar right with respect to)such action, any shares and there are no outstanding contractual obligations of Parent Common Stock. Neither Parent nor of any Subsidiary of Parentkind to redeem, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem purchase or otherwise acquire any outstanding shares of capital stock of Parent. Other than shares of Parent Common Stock, there are no outstanding bonds, debentures, notes or other indebtedness or securities of Parent having the right to vote (or, other than the outstanding Parent Options and warrants, convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of Parent may vote. (b) As of March 16May 7, 2001: (i) 5,875,000 2010, 5,844,329 shares of Parent Common Stock are reserved for subject to issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan outstanding Parent Options and options to acquire 3,935,645 2,011,146 shares of Parent Common Stock are outstanding; subject to issuance pursuant to outstanding restricted stock units. Part 3.3(b) of the Parent Disclosure Schedule sets forth accurate and complete information with respect to the holder, the vesting, the exercise price, the expiration date and the number of underlying shares of each Parent Option outstanding as of the date of this Agreement. All outstanding Parent Options were granted pursuant to the terms of one of the Parent Stock Plans. Parent has delivered or made available to the Company accurate and complete copies of each of the Parent Stock Plans. The Parent Stock Plans are binding upon and enforceable by Parent against all holders of Parent Options, subject to (i) laws of general application relating to bankruptcy, insolvency, reorganization, moratorium and the enforcement of creditors’ rights generally, and (ii) 350,000 shares rules of Parent Common Stock are reserved for issuancelaw governing specific performance, injunctive relief and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Optionsother equitable remedies.") (c) Except as set forth in Section 3.3(aPart 3.3(b) or (b) aboveof the Parent Disclosure Schedule, there is no: (i) outstanding subscription, option, call, call warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parentany of the Acquiring Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parentany of the Acquiring Corporations; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent any of the Acquiring Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")any of the Acquiring Corporations. (d) All outstanding shares of Parent Common Stockcapital stock, all outstanding Parent Options and all outstanding shares options, warrants and other securities of capital stock of each Subsidiary of Parent the Acquiring Corporations have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all material requirements set forth in applicable Contracts. . (e) All of the outstanding shares of capital stock of each of the Parent’s Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable andand free of preemptive rights, except for directors' qualifying shareswith no personal liability attaching to the ownership thereof, and are owned beneficially and of record by Parent, free and clear of any Encumbrances. The . (f) Since January 1, 2006, except as set forth in Part 3.3(f) of the Parent Common Stock to be issued Disclosure Schedule, none of the Acquiring Corporations has ever repurchased, redeemed or otherwise reacquired any securities of any Acquiring Corporation, other than Parent Options forfeited by employees of an Acquiring Corporation in the Merger will, when issued in accordance connection with the provisions termination of this Agreementsuch employee’s employment with an Acquiring Corporation. All securities so reacquired by Parent or any other Acquiring Corporation were reacquired in compliance with (i) all applicable Legal Requirements, be validly issued, fully paid and nonassessable(ii) all material requirements set forth in applicable restricted stock purchase agreements and other applicable Contracts.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 70,000,000 shares of Parent Common Stock and (ii) 5,000,000 Stock, of which 44,629,445 shares of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding as of the date of this Agreement; and 27,437 30,000,000 shares of Parent Preferred Stock have been Stock, none of which is issued or are outstanding. No shares and outstanding as of capital stock the date of Parent are held in Parent's treasurythis Agreement. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract no obligation pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001the date of this Agreement: (i) 5,875,000 no shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1997 2004 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstandingPlan; (ii) 350,000 111,250 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, future issuance pursuant to stock options granted and outstanding under Parent's 1997 Non-Employee Directors' 2000 Stock Option Plan Plan; and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 13,000 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1999 Equity Incentive Plan and options 2001 Stock Option Plan. (Options to acquire 3,998,183 purchase shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options whether granted by Parent pursuant to the Parent's stock option plans, assumed by Parent Stock Option Plans in connection with any merger, acquisition or similar transaction or otherwise issued or granted) are referred to collectively herein in this Agreement as "Parent Options.")) Part 3.2(b) of the Parent Disclosure Schedule sets forth the following information with respect to each Parent Option outstanding as of the date of this Agreement: (i) the particular plan (if any) pursuant to which such Parent Option was granted; (ii) the name of the optionee; (iii) the number of shares of Parent Common Stock subject to such Parent Option; (iv) the exercise price of such Parent Option; (v) the date on which such Parent Option was granted; (vi) the applicable vesting schedule, and the extent to which such Parent Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Parent Option expires. Parent has made available to the Company accurate and complete copies of all stock option plans pursuant to which any of the outstanding Parent Options were issued, and the forms of all stock option agreements evidencing such options. (c) Except as set forth in Section 3.3(aPart 3.2(c) or (b) above, of the Parent Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")Parent. (d) All outstanding shares capital stock, options and other securities of the Parent Common Stock, all outstanding Parent Options and all outstanding shares of capital stock of each Subsidiary of Parent Entities 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 Contracts. . (e) All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable andand free of preemptive rights, except for directors' qualifying shareswith no personal liability attaching to the ownership thereof, and are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001After giving effect to the Parent Restated Charter, the authorized capital stock of Parent consists of: of (i) 35,000,000 300,000,000 shares of Parent Common Stock, par value $0.001 and (ii) 10,000,000 shares of Parent Preferred Stock, par value $0.001. After giving effect to the Share Contribution in connection with the Split-Off, but prior to giving effect to the Transaction, 2,500,000 shares of Parent Common Stock were issued and (ii) 5,000,000 shares of preferred stock. As of March 16outstanding, 2001, 17,429,183 no shares of Parent Common Stock have been issued were held by Parent in its treasury, and are outstanding and 27,437 no shares of Parent Preferred Stock have been issued or are outstanding. No shares The Parent Common Stock is presently eligible for quotation and trading on the OTC Markets and is not subject to any notice of capital stock of Parent are held in Parent's treasurysuspension or delisting. All of the The issued and outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable, and are free of preemptive rights. There are Since June 30, 2014, (i) there have been no issuances by Parent of shares of capital stock of Parent and (ii) there have been no issuances by Parent of any options, warrants or other rights to acquire capital stock of Parent. Except as expressly contemplated herein and in the Split-Off Agreement, and except for the 2.272727-for-1 forward split of Parent Common Stock held by in the form of a dividend that was effective on December 5, 2014, Parent has not, subsequent to December 31, 2013, declared or Pieris/Marika Acquisition Agreement paid any Parent Subsidiary. None of dividend, or declared or made any distribution on, or authorized the outstanding shares of Parent Common Stock is entitled creation or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration issuance of, or restricting issued, or authorized or effected any Person from purchasingsplit-up or any other recapitalization of, sellingany of its capital stock, pledging or directly or indirectly redeemed, purchased or otherwise disposing acquired any of (or granting its outstanding capital stock. Except as expressly contemplated herein and in the Split-Off Agreement, Parent has not heretofore agreed to take any option or similar right with respect to)such action, any shares and there are no outstanding contractual obligations of Parent Common Stock. Neither Parent nor of any Subsidiary of Parentkind to redeem, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem purchase or otherwise acquire any outstanding shares of capital stock of Parent. Other than the Parent Common Stock, there are no outstanding bonds, debentures, notes or other indebtedness or securities of Parent having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of Parent may vote. The capitalization of Parent, including the names of all holders, beneficially or of record, of Parent known to the board of directors of Parent, Montrose Capital Limited and the Placement Agents and holders of 1% or more of the capital stock of Parent, has been provided to the Company and the Holders. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above4.3(a), there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any there are no shares of capital stock or other voting securities of Parent issued, reserved for issuance or outstanding, and (items (iii) through (iv)there are no outstanding securities, collectivelyoptions, "warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Parent Stock Rights")is a party or by which it is bound obligating Parent to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of Parent or obligating Parent to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. (dc) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares other securities of capital stock of each Subsidiary of Parent Parent, have been issued and granted in compliance with with: (i) all applicable U.S. federal or state securities laws, including but not limited to the Securities Act, and applicable Legal Requirements other than securities laws and other applicable Legal Requirements, to Parent; and (ii) all material requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Contracts to which Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessableis a party.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 65,000,000 shares of Parent Common Stock and (ii) 5,000,000 shares of preferred stockPreferred Stock (“Parent Preferred Stock”). As of March 16January 26, 20012007, 17,429,183 (i) 48,237,147 shares of Parent Common Stock have been issued and are outstanding, (ii) 974,508 outstanding shares of Parent Common Stock are subject to risk of forfeiture and 27,437 repurchase rights that lapse over time (“Parent Restricted Stock”), and (iii) no shares of Parent Preferred Stock have been issued or and are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock and Parent Warrants have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the All outstanding shares of Parent Common Stock and all outstanding Parent Options and Parent Warrants have been issued and granted in compliance in all material respects with (y) all applicable securities laws and other applicable Legal Requirements, and (z) all requirements set forth in the Parent Constituent Documents and applicable Contracts. Part 3.3(a) of the Parent Disclosure Schedule provides an accurate and complete description of the terms of each repurchase option which is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of held by Parent and there is no Parent Contract relating to the voting or registration of, or restricting which any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any such shares of Parent Common Stock. Neither , including all Parent nor any Subsidiary of ParentRestricted Stock, is under any obligation, or is bound by any subject and identifies the Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stockunderlying such right. (b) As of March 16January 26, 2001: 2007, Parent has reserved 8,475,607 shares of Parent Common Stock for issuance under its Parent Stock Option Plans (iincluding 270,613 shares of Parent Common Stock reserved for issuance under Parent’s 1999 Employee Stock Purchase Plan) 5,875,000 of which options to purchase 3,601,479 shares are outstanding as of January 26, 2007 (“Parent Options”). As of January 26, 2007, 1,293,211 shares of Parent Common Stock are reserved for future issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares the Parent Warrants. As of the date of this Agreement, except for Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options Options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "and rights thereunder, the Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) aboveWarrants, Parent Restricted Stock and Parent’s 1999 Employee Stock Purchase Plan and rights thereunder, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent or any of its Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securitiessecurities of Parent or to repurchase, redeem or otherwise acquire any outstanding securities of Parent or any of its Subsidiaries; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.the

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: of (i) 35,000,000 100,000,000 shares of Parent Common Stock and (ii) 5,000,000 shares of preferred stockParent Preferred Stock. As of March 16the close of business on September 15, 2001, 17,429,183 2008: (A) 53,663,805 shares of Parent Common Stock have been were issued and are outstanding and 27,437 outstanding; (B) no shares of Parent Preferred Stock have been were issued or are outstanding. No ; (C) no shares of capital stock Parent Common Stock were held by Parent in its treasury; (D) there were outstanding Parent Options to purchase 5,594,298 shares of Parent Common Stock, outstanding restricted stock units pursuant to which 27,332 shares of Parent Common Stock are held in Parent's treasuryissuable, and 6,806,216 shares of Parent Common Stock were reserved for issuance under the Parent Stock Plans (not including shares issuable pursuant to Parent Options and restricted stock units); and (E) there were outstanding warrants (“Parent Warrants”) exercisable for 850,224 shares of Parent Common Stock and such number of shares of Parent Common Stock were reserved for issuance upon conversion of such Parent Warrants. All of the Such issued and outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable, and are free of preemptive rights. There are During the period from September 15, 2008 to the date of this Agreement, (i) there have been no issuances by Parent of shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares capital stock of Parent Common Stock is entitled or subject to any preemptive right, right other than issuances of participation, right of maintenance or any similar right or subject to any right of first refusal in favor capital stock of Parent and there is no Parent Contract relating pursuant to the voting exercise of Parent Options outstanding on such date and (ii) there have been no issuances of Parent Options or registration other options, warrants or other rights to acquire capital stock of Parent. Parent has not, subsequent to September 15, 2008, declared or paid any dividend, or declared or made any distribution on, or authorized the creation or issuance of, or restricting issued, or authorized or effected any Person from purchasingsplit-up or any other recapitalization of, sellingany of its capital stock, pledging or directly or indirectly redeemed, purchased or otherwise disposing acquired any of (or granting its outstanding capital stock. Parent has not heretofore agreed to take any option or similar right with respect to)such action, any shares and there are no outstanding contractual obligations of Parent Common Stock. Neither Parent nor of any Subsidiary of Parentkind to redeem, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem purchase or otherwise acquire any outstanding shares of capital stock of Parent. Other than the Parent Common Stock, there are no outstanding bonds, debentures, notes or other indebtedness or securities of Parent having the right to vote (or, other than the outstanding Parent Options and warrants, convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of Parent may vote. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above), there is no: (i) outstanding subscriptionas of September 15, option2008, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any no shares of capital stock or other voting securities of Parent (items (i) through (iv)are issued, collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirementsreserved for issuance or outstanding, and (ii) all requirements set forth in applicable Contracts. All of the there are no outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issuedsecurities, are fully paid and nonassessable andoptions, except for directors' qualifying shareswarrants, are owned beneficially and of record by Parentcalls, free and clear rights, commitments, agreements, arrangements or undertakings of any Encumbrances. The kind to which Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.or any of

Capitalization, Etc. (a) As of March 16, 2001, the The authorized share capital stock of Parent consists of: (i) 35,000,000 shares of 992,000,000 Parent Common Stock Shares; and (ii) 5,000,000 shares of preferred stock8,000,000 Parent Preferred Shares. As of March the close of business on November 16, 2001, 17,429,183 shares of 2017 (the “Parent Listing Date”): (i) 491,141,269 Parent Common Shares were issued; (ii) no Parent Preferred Shares were issued; (iii) 13,467,860 Parent Common Shares were subject to issuance pursuant to Parent Options; (iv) 10,031,228 Parent Common Shares were subject to issuance pursuant to Parent RSUs; and (v) 1,610,235 Parent Common Shares (assuming achievement of the target level of performance at the end of the applicable performance period) were subject to issuance pursuant to Parent PRSUs. (b) As of the close of business on the Parent Listing Date: (i) 96,528,676 Parent Common Shares were reserved for future issuance pursuant to Parent’s Amended and Restated 1995 Stock Option Plan, as amended; and (ii) 25,804,402 Parent Common Shares were reserved for future issuance pursuant to Parent’s 2000 Employee Stock Purchase Plan, as amended. From the close of business on the Parent Listing Date until the date of this Agreement, no Parent Common Shares or Parent Preferred Shares have been issued and are outstanding and 27,437 shares except for Parent Common Shares issued pursuant to the exercise of Parent Preferred Stock have been issued Options or are outstanding. No shares of capital stock the vesting of Parent are held RSUs or Parent PRSUs, in Parent's treasury. each case outstanding on the Parent Listing Date and in accordance with their terms. (c) All of the outstanding shares of issued Parent Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares further capital calls can be made in respect of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stocksuch shares. (bd) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") Listing Date, except (cx) Except as set forth in Section 3.3(aSections 3.2(a) and 3.2(b), (y) for securities owned by Parent or any of its Subsidiaries and (bz) abovefor changes since the Parent Listing Date resulting from the exercise of Parent Options outstanding on the Parent Listing Date or the vesting of Parent RSUs or Parent PRSUs outstanding on the Parent Listing Date in accordance with their terms, there is are no there are no: (i) outstanding subscriptionequity-based compensation awards, optionsubscriptions, calloptions, warrant calls, warrants or right other rights, Contracts, arrangements or commitments of any character issued or granted by Parent relating to the issued or unissued shares of Parent (whether or not currently exercisable) or obligating Parent to acquire issue or sell any shares of the capital stock of, or other securities of equity interests in, Parent; (ii) shares of, or other voting securities or ownership interests in, Parent that have been issued by Parent which are outstanding; (iii) outstanding securitysecurities, instrument instruments or obligation obligations issued by Parent that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iiiiv) outstanding restricted shares, restricted share units, stock appreciation rights, performance shares, contingent Table of Contents value rights, “phantom” stock or similar securities or rights agreementissued or granted by Parent that are derivative of or provide economic benefits based, directly or indirectly, on the value or price of any shares or other voting securities (including any bonds, debentures, notes or other indebtedness having voting rights or convertible into securities having voting rights) or ownership interests in Parent; or (v) stockholder rights plan plans (or similar plan plans containing any aspects commonly referred to as a "“poison pill"”) or Contract Contracts under which Parent is or may become obligated to sell or otherwise issue any of shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized share capital stock of Parent consists of: (i) 35,000,000 shares of 992,000,000 Parent Common Stock Shares; and (ii) 5,000,000 shares of preferred stock8,000,000 Parent Preferred Shares. As of March the close of business on November 16, 2001, 17,429,183 shares of 2017 (the “Parent Listing Date”): (i) 491,141,269 Parent Common Shares were issued; (ii) no Parent Preferred Shares were issued; (iii) 13,467,860 Parent Common Shares were subject to issuance pursuant to Parent Options; (iv) 10,031,228 Parent Common Shares were subject to issuance pursuant to Parent RSUs; and (v) 1,610,235 Parent Common Shares (assuming achievement of the target level of performance at the end of the applicable performance period) were subject to issuance pursuant to Parent PRSUs. (b) As of the close of business on the Parent Listing Date: (i) 96,528,676 Parent Common Shares were reserved for future issuance pursuant to Parent’s Amended and Restated 1995 Stock Option Plan, as amended; and (ii) 25,804,402 Parent Common Shares were reserved for future issuance pursuant to Parent’s 2000 Employee Stock Purchase Plan, as amended. From the close of business on the Parent Listing Date until the date of this Agreement, no Parent Common Shares or Parent Preferred Shares have been issued and are outstanding and 27,437 shares except for Parent Common Shares issued pursuant to the exercise of Parent Preferred Stock have been issued Options or are outstanding. No shares of capital stock the vesting of Parent are held RSUs or Parent PRSUs, in Parent's treasury. each case outstanding on the Parent Listing Date and in accordance with their terms. (c) All of the outstanding shares of issued Parent Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares further capital calls can be made in respect of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stocksuch shares. (bd) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") Listing Date, except (cx) Except as set forth in Section 3.3(aSections 3.2(a) and 3.2(b), (y) for securities owned by Parent or any of its Subsidiaries and (bz) abovefor changes since the Parent Listing Date resulting from the exercise of Parent Options outstanding on the Parent Listing Date or the vesting of Parent RSUs or Parent PRSUs outstanding on the Parent Listing Date in accordance with their terms, there is are no there are no: (i) outstanding subscriptionequity-based compensation awards, optionsubscriptions, calloptions, warrant calls, warrants or right other rights, Contracts, arrangements or commitments of any character issued or granted by Parent relating to the issued or unissued shares of Parent (whether or not currently exercisable) or obligating Parent to acquire issue or sell any shares of the capital stock of, or other securities of equity interests in, Parent; (ii) shares of, or other voting securities or ownership interests in, Parent that have been issued by Parent which are outstanding; (iii) outstanding securitysecurities, instrument instruments or obligation obligations issued by Parent that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iiiiv) outstanding restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights agreementissued or granted by Parent that are derivative of or provide economic benefits based, directly or indirectly, on the value or price of any shares or other voting securities (including any bonds, debentures, notes or other indebtedness having voting rights or convertible into securities having voting rights) or ownership interests in Parent; or (v) stockholder rights plan plans (or similar plan plans containing any aspects commonly referred to as a "“poison pill"”) or Contract Contracts under which Parent is or may become obligated to sell or otherwise issue any of shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 19,000,000 shares of Parent Common Stock and (ii) 5,000,000 with par value $.01), of which 6,959,810 shares of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding as of the date of this Agreement; and 27,437 (ii) 1,000,000 shares of Parent Preferred Stock have been issued or are outstanding. No shares (with par value $.01), none of capital stock which is outstanding as of Parent are held in Parent's treasurythe date of this Agreement. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no non-assessable. (b) Parent has reserved (i) 2,000,000 shares of Parent Common Stock held by any Parent Subsidiary. None for issuance under its 1997 Equity Incentive Plan, of which options to purchase 879,297 shares are outstanding as of the outstanding date of this Agreement; (ii) 525,000 shares of Parent Common Stock is entitled or subject for issuance under its 1992 Outside Directors' Plan, of which options to any preemptive right, right purchase 291,500 shares are outstanding as of participation, right the date of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of this Agreement; (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (biii) As of March 16, 2001: (i) 5,875,000 270,671 shares of Parent Common Stock are reserved for issuance pursuant to under outstanding non-plan stock options under Parent's 1997 Equity Incentive Plan options; and options to acquire 3,935,645 (iv) 138,000 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP")under outstanding warrants. (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in this Section 3.3(a) or (b) above3.4 and in Part 3.4 of the Parent Disclosure Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) to the best of the knowledge of Parent, condition or circumstance that may could reasonably be expected to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")Parent. (dc) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares options and warrants of capital stock of each Subsidiary of Parent Parent, have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all material requirements set forth in applicable Parent Contracts. . (d) All securities that have been reacquired by Parent were reacquired in compliance with (i) the applicable provisions of the Delaware General Corporation Law and all other applicable Legal Requirements, and (ii) all material requirements set forth in applicable restricted stock purchase agreements and other applicable Parent Contracts. (e) All of the outstanding shares of capital stock of each of the Parent Subsidiaries of Parent have been duly authorized and are validly issuedissued (in compliance with all applicable securities laws and other Legal Requirements and applicable Parent Contracts), are fully paid and nonassessable and, except for directors' qualifying shares, and are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessableEncumbrance.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 100,000,000 shares of Parent Common Stock and (ii) 5,000,000 Stock, of which 49,511,273 shares of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding as of October 31, 2001; and 27,437 (ii) 10,000,000 shares of Parent Preferred Stock have been issued or Stock, of which no shares are outstanding. No Parent does not hold any shares of its capital stock of Parent are held in Parent's its treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There As of the date of this Agreement, there are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16October 31, 2001: (i) 5,875,000 1,017,799 shares of Parent Common Stock reserved for future issuance pursuant to stock options granted and outstanding under Parents' 1997 Equity Incentive Plan; (ii) 4,258,580 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1997 2000 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstandingPlan; (iiiii) 350,000 295,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, future issuance pursuant to stock options granted and outstanding under Parent's 1997 2000 Non-Employee Directors' Director's Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstandingPlan; (iiiiv) 6,000,000 376,303 shares of Parent Common Stock are reserved for future issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common 2000 Employee Stock are outstandingPurchase Plan; and (ivv) 350,000 581,793 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, future issuance pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock stock options granted by and outstanding under the Agritope, Inc. 1997 Stock Award Plan; (vi) 461,265 shares of Parent pursuant to Common Stock are reserved for future issuance upon the Parent Stock Option Plans exercise of put or otherwise are referred to collectively herein as "Parent Options.")call options arising out of the acquisition of Artemis Pharmaceuticals GmbH. (c) Except as set forth in Section 3.3(a) or (b) aboveAll outstanding capital stock, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or options and other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. . (d) All of the outstanding shares of capital stock of each the corporations identified in Part 4.1 of the Subsidiaries of Parent Disclosure Schedule have been duly authorized and are validly issued, are fully paid and nonassessable andand free of preemptive rights, except for directors' qualifying shareswith no personal liability attaching to the ownership thereof, and are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 of 50,000,000 shares, of which 50,000,000 are shares of Parent Common Stock and there are no shares of Preferred Stock (ii) 5,000,000 shares of preferred stock. As of March 16, 2001, 17,429,183 5,500,000 shares of Parent Common Stock have been were issued and are outstanding and 27,437 no shares of Preferred Stock; (iii) no shares of Parent Preferred Common Stock have been issued or are outstanding. No were held by Parent in its treasury; (iv) there were no outstanding options to purchase shares of capital stock Parent Common Stock; and (v) there were no outstanding warrants exercisable for shares of Parent are held in Parent's treasuryCommon Stock. All of the Such issued and outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable, and are free of preemptive rights. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of Other than the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither , there are no outstanding bonds, debentures, notes or other indebtedness or securities of Parent nor any Subsidiary of Parent, is under any obligationhaving the right to vote (or convertible into, or is bound by exchangeable for, securities having the right to vote) on any Contract pursuant to matters on which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares stockholders of Parent Common Stockmay vote. (b) As There are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant any kind to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is a party or may become obligated by which it is bound obligating Parent to sell issue, deliver or otherwise issue any shares of its capital stock sell, or any other securities; cause to be issued, delivered or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any sold, additional shares of capital stock or other voting securities of Parent (items (i) through (iv)or obligating Parent to issue, collectivelygrant, "Parent Stock Rights")extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. (dc) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares of capital stock of each Subsidiary of Parent Stock have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, Requirement applicable to Parent; and (ii) all material requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessablecontracts.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 40,000,000 shares of Parent Common Stock and (ii) 5,000,000 without giving effect to the Parent Required Vote), of which 23,835,436 shares of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding as of the date of this Agreement; and 27,437 (ii) 2,000,000 shares of Parent Preferred Stock have been issued or none of which is outstanding as of the date hereof. There are outstanding. No no shares of capital stock of Parent are Capital Stock held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stocknon-assessable. (b) As of March 16, 2001the date of this Agreement: (i) 5,875,000 3,880,445 shares of Parent Common Stock are reserved for future issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan granted and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the its stock option plans and any stock options granted outside of Parent Stock Option Plans or otherwise stock option plans are referred to collectively herein in this Agreement as "Parent Options.")) Parent has delivered or made available to Parent accurate and complete copies of all stock option plans pursuant to which Parent (or any of its predecessors) has ever granted stock options. (c) Except for Parent Options, and except as set forth described in Section 3.3(aPart 3.8(c) or (b) aboveof Parent Disclosure Schedule, as of the date of this Agreement, there is no: (i) outstanding subscription, option, call, warrant or other right (whether or not currently exercisable) to acquire from Parent any shares of the capital stock Parent Common Stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may will become convertible into or exchangeable for any newly issued shares of the capital stock Parent Common Stock or other newly issued securities of Parent; or (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may will become obligated to sell or otherwise issue any shares of its capital stock Parent Common Stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights"). (d) All outstanding Parent is not party to any Parent Contract that obligates it to, and is not otherwise obligated to, repurchase or redeem any of its issued securities. There is no voting trust or other arrangement to which Parent is a party, or of which Parent is aware, with respect to the voting of Parent Common Stock. (e) There are no declared but unpaid dividends with respect to any shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 of 500,000,000 shares of Parent Common Stock and (ii) 5,000,000 10,000,000 shares of preferred stock. As of March 16April 30, 20012000, 17,429,183 (i) 134,213,706 shares of Parent Common Stock have been were issued and are outstanding and 27,437 no shares of preferred stock were issued and outstanding; (ii) Parent had reserved an additional 21,291,566 shares of Parent Preferred Common Stock have been issued or are outstanding. No for issuance under Parent's employee equity incentive plans, of which options to acquire 17,198,475 shares of capital stock Parent Common Stock were outstanding; (iii) Parent had reserved 3,000,000 shares of Parent are held in Common Stock for purchase under Parent's treasury. All employee stock purchase plan; (iv) Parent had reserved an additional 1,670,680 shares of Parent Common Stock for issuance upon exercise of outstanding warrants; and (v) all of the issued and outstanding shares of Parent Common Stock have had been duly authorized and validly issued, issued and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is not under any obligation, or is nor bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above, as of April 30, 2000 there is was no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; securities or (iv) to the Knowledge of Parent, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 of 50,000,000 shares of Parent Common Stock. As of June 30, 2008, 24,315,569 shares of Parent Common Stock and (ii) 5,000,000 shares of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock have been were issued and are outstanding and 27,437 shares of Parent Preferred Stock have been issued or are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no The authorized capital stock of Merger Sub consists of: 10,000 shares of Parent Merger Sub Common Stock held by any Parent Subsidiary. None Stock, of which 100 shares have been issued, all to Parent, and are outstanding as of the outstanding shares date of this Agreement. Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), does not hold any shares of Parent Common Stockits capital stock in its treasury. Neither As of the date of this Agreement, neither Parent nor any Subsidiary of Parent, Merger Sub is under any obligation, or is bound by any Contract pursuant to which it may become obligated, obligated to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16June 30, 2001: (i) 5,875,000 2008, 9,325,067 shares of Parent Common Stock are reserved for future issuance pursuant to stock warrant options under Parent's 1997 Equity Incentive Plan previously granted and outstanding . . Other than such warrant options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except except as set forth in Section 3.3(a) or (b) abovePart 3.3 of the Parent Disclosure Schedule, as of the date of this Agreement there is no: no (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of ParentParent Common Stock; (ii) outstanding security, instrument or obligation that by its terms is or may become convertible into or exchangeable for any shares of Parent or Common Stock. (c) As of the capital date of this Agreement, there is an open offering of 2,887,957shares of Parent Common Stock pursuant to Regulation D with warrant options for an additional 2,887,957 shares of Common Stock. (Warrants to purchase shares of Parent Common Stock (whether granted by the Parent pursuant to the Parent's stock or other securities of Parent; (iii) rights agreementoption plans, stockholder rights plan (assumed by the Parent in connection with any merger, acquisition or similar plan commonly transaction or otherwise issued or granted) are also referred to in this Agreement as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock RightsOptions.") (d) All outstanding shares capital stock and options of Parent Common Stock, all outstanding Parent Options and all outstanding shares of capital stock of each Subsidiary of Parent have been Merger Sub were issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 65,000,000 shares of Parent Common Stock and (ii) 5,000,000 shares of preferred stockPreferred Stock (“Parent Preferred Stock”). As of March 16January 26, 20012007, 17,429,183 (i) 48,237,147 shares of Parent Common Stock have been issued and are outstanding, (ii) 974,508 outstanding shares of Parent Common Stock are subject to risk of forfeiture and 27,437 repurchase rights that lapse over time (“Parent Restricted Stock”), and (iii) no shares of Parent Preferred Stock have been issued or and are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock and Parent Warrants have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the All outstanding shares of Parent Common Stock and all outstanding Parent Options and Parent Warrants have been issued and granted in compliance in all material respects with (y) all applicable securities laws and other applicable Legal Requirements, and (z) all requirements set forth in the Parent Constituent Documents and applicable Contracts. Part 3.3(a) of the Parent Disclosure Schedule provides an accurate and complete description of the terms of each repurchase option which is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of held by Parent and there is no Parent Contract relating to the voting or registration of, or restricting which any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any such shares of Parent Common Stock. Neither , including all Parent nor any Subsidiary of ParentRestricted Stock, is under any obligation, or is bound by any subject and identifies the Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stockunderlying such right. (b) As of March 16January 26, 2001: 2007, Parent has reserved 8,475,607 shares of Parent Common Stock for issuance under its Parent Stock Option Plans (iincluding 270,613 shares of Parent Common Stock reserved for issuance under Parent’s 1999 Employee Stock Purchase Plan) 5,875,000 of which options to purchase 3,601,479 shares are outstanding as of January 26, 2007 (“Parent Options”). As of January 26, 2007, 1,293,211 shares of Parent Common Stock are reserved for future issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares the Parent Warrants. As of the date of this Agreement, except for Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options Options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "and rights thereunder, the Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) aboveWarrants, Parent Restricted Stock and Parent’s 1999 Employee Stock Purchase Plan and rights thereunder, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent or any of its Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securitiessecurities of Parent or to repurchase, redeem or otherwise acquire any outstanding securities of Parent or any of its Subsidiaries; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a valid claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")Parent. (dc) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent Merger Sub have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, and are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16May 27, 20012021 (the “Parent Capitalization Date”), the authorized capital stock Parent Capital Stock consists solely of 35 million shares of Parent consists of: (i) 35,000,000 Class A Common Stock, 200 million shares of Parent Class B Common Stock. A total of 787,163 shares of Parent Class A Common Stock, 15,984,127 shares of Parent Class B Common Stock and no shares of Parent Preferred Stock are issued and outstanding as of the Parent Capitalization Date. As of the Parent Capitalization Date, Parent has reserved the following shares of Parent Common Stock for issuance to employees, non-employee directors and consultants pursuant to the Parent Equity Plan or otherwise: 689,210 shares are subject to outstanding and unexercised options to purchase Parent Common Stock, 999,547 shares are subject unvested restricted stock awards, and 48,746 shares remain available for issuance thereunder. The Debt of Parent as of the Parent Capitalization Date is listed on Part 3.2(a) of the Parent Disclosure Schedule. (iib) 5,000,000 shares of preferred stock. As of March 16the Parent Capitalization Date, 2001except as described in Section 3.2(a) (Capitalization, 17,429,183 Etc.), (A) there are no other existing options, warrants, calls, rights (including contingent rights, conversion rights, preemptive rights, co-sale rights, rights of first refusal, convertible securities, subscription rights or other agreements or commitments of any character obligating the Parent to issue any shares or other convertible securities) issued or granted by Parent, and there are no securities of Parent Common Stock have been issued and are outstanding and 27,437 shares which upon conversion or exchange would require, the issuance, sale or transfer of Parent Preferred Stock have been issued or are outstanding. No any additional shares of capital stock or other equity securities of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of Parent Capital Stock or other equity securities of Parent, (B) there are held no obligations, contingent or otherwise, of Parent to (1) repurchase, redeem or otherwise acquire any shares of Parent Capital Stock or (2) to make any material investment in (in the form of a loan, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person. (c) As of the Parent Capitalization Date, there are no outstanding restricted shares, stock appreciation rights, phantom stock, contingent value rights, profit participation or similar rights with respect to the Parent's treasury. . (d) There are no voting trusts, irrevocable proxies or other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent of any shares of Parent Capital Stock. (e) All of the outstanding shares of Parent Common Capital Stock are and have been duly authorized and validly issued, and are fully paid and nonassessable. There , are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or not subject to any preemptive rightrights, right of participationpurchase options, right of maintenance or any similar right or subject to any right call options, rights of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Options.") (c) Except as set forth in Section 3.3(a) or (b) above, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights") (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options Liens and all outstanding shares of capital stock of each Subsidiary of Parent have been issued and granted in all material respects in compliance with (i) all applicable securities laws Laws and other applicable Legal RequirementsLaws. (f) The authorized capital stock of Merger Sub I consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and (ii) outstanding. The authorized units of Merger Sub II consists solely of 1,000 units, all requirements set forth in applicable Contractsof which are validly issued and outstanding. All of the issued and outstanding capital stock and units, as applicable, of each the Merger Subs is, and as of the Effective Time shall be, directly owned by Parent. (g) As of the Parent Capitalization Date, Pharma Holdings LLC is the beneficial owner of the 56% Warrant. Part 3.2(g) of the Parent Disclosure Schedule sets forth each date of exercise of the 56% Warrant, and the number, class and series of shares of Company capital stock of issued to Pharma Holdings LLC upon each exercise of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable56% Warrant.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized share capital stock of Parent consists ofof 800,000,000 shares of Parent Ordinary Shares. As of 5:00 p.m. Pacific Time on May 15, 2008: (i) 35,000,000 125,364,021 Parent Ordinary Shares were issued and outstanding, of which no shares were unvested or were subject to any repurchase rights, risk of Parent Common Stock and forfeiture or other similar condition in favor of Parent; (ii) 5,000,000 37,429,273 Parent Ordinary Shares were issuable upon the exercise of warrants that were issued and outstanding; (iii) 32,702,228 Parent Ordinary Shares were issuable upon the exercise of options that were issued and outstanding; (iv) 57,683,366 Parent Ordinary Shares were issuable upon the conversion of convertible debentures that were outstanding; and (v) 117,763,158 Parent Ordinary Shares were issuable upon the conversion of capital notes that were outstanding .. Between 5:00 p.m. Pacific Time on May 15, 2008 and the date of this Agreement, Parent has not issued any Parent Ordinary Shares except shares issued upon exercise of preferred stockoutstanding options or warrants or conversion of outstanding convertible debentures. As of March 16the date of this Agreement, 2001in the aggregate, 17,429,183 shares of 787,000 Parent Common Stock have been issued and are Ordinary Shares were reserved for future issuance pursuant to Parent’s equity incentive plans. (b) All the outstanding and 27,437 shares of Parent Preferred Stock have been issued or are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares and each Subsidiary of Parent Common Stock have been duly authorized and validly issued, issued and are fully paid and nonassessable. There are no shares . (c) Except as set forth in Part 3.3(c)(i) of the Parent Common Stock held by any Parent Subsidiary. None Disclosure Schedule (i) none of the outstanding shares of capital stock of Parent Common Stock is entitled or subject to any preemptive right, right or right of participation, right ; (ii) none of maintenance or any similar right or the outstanding shares of the capital stock of Parent is subject to any right of first refusal or similar right in favor of Parent Parent; and (iii) there is no Parent Contract agreement in place relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary the capital stock of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (bd) As of March 16Except for options, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan rights, securities and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are plans referred to collectively herein in Section 3.3(a), as "Parent Options.") (c) Except of the date of this Agreement and except as set forth in Section 3.3(aon Part 3.3(d) or (b) aboveof the Parent Disclosure Schedule, there is no: (i) outstanding subscription, option, call, warrant or stock appreciation right or other right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent or any Subsidiary of Parent; (ii) outstanding restricted stock awards, restricted stock unit awards, performance stock awards or performance cash awards; (iii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent or any Subsidiary of Parent; (iiiiv) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract contract under which Parent or any Subsidiary of Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (ivv) to the Knowledge of Parent, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock of Parent or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")Parent. (de) All outstanding shares of Parent Common Stockcapital stock, all outstanding Parent Options options, warrants, stock appreciation rights and all outstanding shares of capital stock of each Subsidiary other securities or equity interests of Parent have been issued and granted in compliance in all material respects with (i) all applicable securities laws and other applicable Legal Requirements, and . (iif) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock equity interests of each of the Subsidiaries of Parent Parent’s Subsidiaries: (i) have been duly authorized and are validly issued, (ii) are fully paid nonassessable and nonassessable andfree of preemptive rights, with no obligation to contribute additional capital, and (iii) except for directors' qualifying sharesas set forth in Part 3.3(f) of the Parent Disclosure Schedule, are owned beneficially and of record by Parent, free and clear of any Encumbrances (other than Permitted Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable).

Capitalization, Etc. (aA) As of March 16, 2001, the The authorized share capital stock of Parent consists ofof 800,000,000 shares of Parent Ordinary Shares. As of 5:00 p.m. Pacific Time on May 15, 2008: (i) 35,000,000 125,364,021 Parent Ordinary Shares were issued and outstanding, of which no shares were unvested or were subject to any repurchase rights, risk of Parent Common Stock and forfeiture or other similar condition in favor of Parent; (ii) 5,000,000 37,429,273 Parent Ordinary Shares were issuable upon the exercise of warrants that were issued and outstanding; (iii) 32,702,228 Parent Ordinary Shares were issuable upon the exercise of options that were issued and outstanding; (iv) 57,683,366 Parent Ordinary Shares were issuable upon the conversion of convertible debentures that were outstanding; and (v) 117,763,158 Parent Ordinary Shares were issuable upon the conversion of capital notes that were outstanding . Between 5:00 p.m. Pacific Time on May 15, 2008 and the date of this Agreement, Parent has not issued any Parent Ordinary Shares except shares issued upon exercise of preferred stockoutstanding options or warrants or conversion of outstanding convertible debentures. As of March 16the date of this Agreement, 2001in the aggregate, 17,429,183 shares of 787,000 Parent Common Stock have been issued and are Ordinary Shares were reserved for future issuance pursuant to Parent's equity incentive plans. (B) All the outstanding and 27,437 shares of Parent Preferred Stock have been issued or are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares and each Subsidiary of Parent Common Stock have been duly authorized and validly issued, issued and are fully paid and nonassessable. There are no shares . (C) Except as set forth in Part 3.3(c)(i) of the Parent Common Stock held by any Parent Subsidiary. None Disclosure Schedule (i) none of the outstanding shares of capital stock of Parent Common Stock is entitled or subject to any preemptive right, right or right of participation, right ; (ii) none of maintenance or any similar right or the outstanding shares of the capital stock of Parent is subject to any right of first refusal or similar right in favor of Parent Parent; and (iii) there is no Parent Contract agreement in place relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary the capital stock of Parent, is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (bD) As of March 16Except for options, 2001: (i) 5,875,000 shares of Parent Common Stock are reserved for issuance pursuant to stock options under Parent's 1997 Equity Incentive Plan rights, securities and options to acquire 3,935,645 shares of Parent Common Stock are outstanding; (ii) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, pursuant to stock options under Parent's 1997 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 shares of Parent Common Stock are reserved for issuance pursuant to Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common Stock are outstanding; and (iv) 350,000 shares of Parent Common Stock are reserved for issuance, and an additional 1,000,000 subject to stockholder approval, pursuant to Parent's 1997 Employee Stock Purchase Plan (the "Parent ESPP"). (Stock options granted by Parent pursuant to the Parent Stock Option Plans or otherwise are plans referred to collectively herein in Section 3.3(a), as "Parent Options.") (c) Except of the date of this Agreement and except as set forth in Section 3.3(aon Part 3.3(d) or (b) aboveof the Parent Disclosure Schedule, there is no: (i) outstanding subscription, option, call, warrant or stock appreciation right or other right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent or any Subsidiary of Parent; (ii) outstanding restricted stock awards, restricted stock unit awards, performance stock awards or performance cash awards; (iii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent or any Subsidiary of Parent; (iiiiv) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract contract under which Parent or any Subsidiary of Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (ivv) to the Knowledge of Parent, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock of Parent or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")Parent. (dE) All outstanding shares of Parent Common Stockcapital stock, all outstanding Parent Options options, warrants, stock appreciation rights and all outstanding shares of capital stock of each Subsidiary other securities or equity interests of Parent have been issued and granted in compliance in all material respects with (i) all applicable securities laws and other applicable Legal Requirements, and . (iiF) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock equity interests of each of the Subsidiaries of Parent Parent's Subsidiaries: (i) have been duly authorized and are validly issued, (ii) are fully paid nonassessable and nonassessable andfree of preemptive rights, with no obligation to contribute additional capital, and (iii) except for directors' qualifying sharesas set forth in Part 3.3(f) of the Parent Disclosure Schedule, are owned beneficially and of record by Parent, free and clear of any Encumbrances (other than Permitted Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable).

Capitalization, Etc. (aA) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 70,000,000 shares of Parent Common Stock and (ii) 5,000,000 Stock, of which 44,629,445 shares of preferred stock. As of March 16, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding as of the date of this Agreement; and 27,437 30,000,000 shares of Parent Preferred Stock have been Stock, none of which is issued or are outstanding. No shares and outstanding as of capital stock the date of Parent are held in Parent's treasurythis Agreement. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Parent Common Stock held by any Parent Subsidiary. None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of Parent and there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is under any obligation, or is bound by any Contract no obligation pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (bB) As of March 16, 2001the date of this Agreement: (i) 5,875,000 no shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1997 2004 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstandingPlan; (ii) 350,000 111,250 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, future issuance pursuant to stock options granted and outstanding under Parent's 1997 Non-Employee Directors' 2000 Stock Option Plan Plan; and options to acquire 270,000 shares of Parent Common Stock are outstanding; (iii) 6,000,000 13,000 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1999 Equity Incentive Plan and options 2001 Stock Option Plan. (Options to acquire 3,998,183 purchase shares of Parent Common Stock (whether granted by Parent pursuant to Parent's stock option plans, assumed by Parent in connection with any merger, acquisition or similar transaction or otherwise issued or granted) are outstandingreferred to in this Agreement as "PARENT OPTIONS.") Part 3.2(b) of the Parent Disclosure Schedule sets forth the following information with respect to each Parent Option outstanding as of the date of this Agreement: (i) the particular plan (if any) pursuant to which such Parent Option was granted; and (ivii) 350,000 the name of the optionee; (iii) the number of shares of Parent Common Stock are reserved for issuancesubject to such Parent Option; (iv) the exercise price of such Parent Option; (v) the date on which such Parent Option was granted; (vi) the applicable vesting schedule, and an additional 1,000,000 subject the extent to stockholder approval, which such Parent Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Parent Option expires. Parent has made available to the Company accurate and complete copies of all stock option plans pursuant to Parent's 1997 Employee Stock Purchase Plan (which any of the "outstanding Parent ESPP"). (Stock options granted by Parent pursuant to Options were issued, and the Parent Stock Option Plans or otherwise are referred to collectively herein as "Parent Optionsforms of all stock option agreements evidencing such options.") (cC) Except as set forth in Section 3.3(aPart 3.2(c) or (b) above, of the Parent Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")Parent. (dD) All outstanding shares capital stock, options and other securities of the Parent Common Stock, all outstanding Parent Options and all outstanding shares of capital stock of each Subsidiary of Parent Entities 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 Contracts. . (E) All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable andand free of preemptive rights, except for directors' qualifying shareswith no personal liability attaching to the ownership thereof, and are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.

Capitalization, Etc. (a) As of March 16, 2001, the The authorized capital stock of Parent consists of: (i) 35,000,000 125,000,000 shares of Parent Common Stock; and (ii) 2,000,000 shares of Parent Preferred Stock. As of October 18, 1999, 41,913,459 (net of 1,276,895 treasury shares) shares of Parent Common Stock were issued and (ii) 5,000,000 shares of preferred stockoutstanding. As of March 16the date of this Agreement, 2001, 17,429,183 shares of Parent Common Stock have been issued and are outstanding and 27,437 no shares of Parent Preferred Stock have been are issued or are outstanding. No shares of capital stock of Parent are held in Parent's treasury. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares Except as set forth in Part 3.3(a)(i) of the Parent Common Stock held by any Parent Subsidiary. None Disclosure Schedule: (i) none of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right or right; (ii) none of the outstanding shares of Parent Common Stock is subject to any right of first refusal in favor of Parent Parent; and (iii) there is no Contract to which Parent Contract is a party relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Neither Parent nor any Subsidiary of Parent, is not under any obligation, or is nor bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock. (b) As of March 16, 2001the date of this Agreement: (i) 5,875,000 6,438,459 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1997 Amended and Restated 1987 Equity Incentive Plan and options to acquire 3,935,645 shares of Parent Common Stock are outstandingPlan; (ii) 350,000 320,625 shares of Parent Common Stock are reserved for issuance, and an additional 350,000 subject to stockholder approval, future issuance pursuant to stock options granted and outstanding under Parent's 1997 1995 Non-Employee Directors' Stock Option Plan and options to acquire 270,000 shares of Parent Common Stock are outstandingPlan; (iii) 6,000,000 3,450,000 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1999 Equity Incentive Plan and options to acquire 3,998,183 shares of Parent Common 1998 Non-Officer Stock are outstandingOption Plan; and (iv) 350,000 1,500,000 shares of Parent Common Stock are reserved for issuance, future issuance pursuant to stock options granted and an additional 1,000,000 subject outstanding under Parent's 1998 Equity Incentive Plan; (v) 245,586 shares of Parent Common Stock are reserved for future issuance pursuant to stockholder approval, stock options granted and outstanding under the 1994 RouterWare Stock Option Plan; (vi) 401,141 shares of Parent Common Stock are reserved for future issuance pursuant to Parent's 1997 Employee Stock Purchase Plan Plan; and (the "vii) 4,329,897 shares of Parent ESPP")Common Stock are reserved for future issuance upon conversion of 5% Convertible Subordinated Notes due 2002. (Stock options granted by Parent pursuant to the Parent Stock Option Plans or Parent's stock option plans and otherwise are referred to collectively herein in this Agreement as "Parent Options."). (c) Except as set forth in Section 3.3(a) or (b) above3.3(b), as of the date of this Agreement there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) rights agreement, stockholder shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent (items (i) through (iv), collectively, "Parent Stock Rights")Parent. (d) All outstanding shares of Parent Common Stock, all outstanding Parent Options 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 Legal Requirements, and (ii) all requirements set forth in applicable Contracts. All of the outstanding shares of capital stock of each of the Subsidiaries of Parent have been duly authorized and are validly issued, are fully paid and nonassessable and, except for directors' qualifying shares, are owned beneficially and of record by Parent, free and clear of any Encumbrances. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.