Common use of Capitalization of the Company and its Subsidiaries Clause in Contracts

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of: (i) 278,000,000 shares of Company Common Stock, (A) 211,000,000 shares of which are designated as shares of Company Class A Common Stock and (B) 67,000,000 shares of which are designated as shares of Company Class B Common Stock and (ii) 10,000,000 shares of Company Preferred Stock, (A) 25,000 shares of which are designated as shares of Company Class A Preferred Stock, (B) 25,000 shares of which are designated as shares of Company Class B Preferred Stock and (C) 16,688 shares of which are designated as shares of Company Class C Preferred Stock. As of April 29, 2003, (i) 18,978,291 shares of Company Class A Common Stock were issued and outstanding, (ii) 45,142,508 shares of Company Class B Common Stock were issued and outstanding, (iii) no shares of Company Class A Preferred Stock were issued and outstanding, (iv) 25,000 shares of Company Class B Preferred Stock were issued and outstanding and (v) 16,688 shares of Company Class C Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock and Company Preferred Stock have been validly issued, and are fully paid, nonassessable and free of preemptive rights. As of April 29, 2003, a total of 4,170,854 shares of Company Class A Common Stock were reserved for issuance pursuant to outstanding Stock Options, and no other shares of Company Class A Common Stock are subject to issuance pursuant to Stock Options or awards of Restricted Shares. Immediately prior to the Effective Time, no shares of Company Class A Preferred Stock or Company Class C Preferred Stock will be outstanding and 25,000 shares of Company Class B Preferred Stock will be outstanding. Set forth in Section 4.2(a) of the Company Disclosure Schedule is a complete and accurate list of the Company Stock Plans and the number of shares of Company Common Stock reserved for issuance pursuant to Stock Options outstanding as of April 29, 2003 under each such Company Stock Plan, and no other shares of Company Common Stock are subject to issuance pursuant to such Company Stock Plans. Since April 29, 2003, no shares of capital stock of the Company have been issued other than pursuant to Stock Options set forth on the Award List, and since April 29, 2003, no Stock Options or Restricted Shares have been granted. Except as set forth above, and as contemplated by Section 2.1, there are no outstanding (i) shares of capital stock (including Restricted Shares) or other voting securities of the Company, (ii) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) options or other rights to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue or sell, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, or (iv) equity equivalents, interests in the ownership or earnings of the Company or other similar rights (collectively, "Company Securities"). Other than as contemplated by this Agreement, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of: (i) 278,000,000 of 125,000,000 shares of Company capital stock, including 120,000,000 shares of Common Stock, (A) 211,000,000 of which 72,960,367 shares of which are designated as shares of Company Class A Common Stock and (B) 67,000,000 shares of which are designated as shares of Company Class B Common Stock and (ii) 10,000,000 shares of Company Preferred Stock, (A) 25,000 shares of which are designated as shares of Company Class A Preferred Stock, (B) 25,000 shares of which are designated as shares of Company Class B Preferred Stock and (C) 16,688 shares of which are designated as shares of Company Class C Preferred Stock. As of April 29, 2003, (i) 18,978,291 shares of Company Class A Common Stock were issued and outstandingoutstanding as of the close of business on October 27, (ii) 45,142,508 2006, 5,000,000 shares of Company Class B Common Preferred Stock, par value $0.01 per share (“Preferred Stock”), none of which Preferred Stock were issued and outstanding, is outstanding (iii) no including 200,000 shares of Series AA Junior Preferred Stock, par value $0.01 per share, reserved for issuance in connection with the exercise of preferred stock purchase rights (the “Company Class A Preferred Rights”) issued pursuant to that certain Rights Agreement, dated as of November 22, 2000, between the Company and American Stock were issued and outstandingTransfer & Trust Company, as Rights Agent, as amended by Amendment No. 1 thereto, dated February 11, 2003 (iv) 25,000 shares of Company Class B Preferred Stock were issued and outstanding and (v) 16,688 shares of Company Class C Preferred Stock were issued and outstandingthe “Rights Agreement”)). All of the outstanding shares of Company Common Stock and Company Preferred Stock have been duly authorized and validly issued, issued and are fully paid, nonassessable paid and free of preemptive rightsnonassessable. As of April 29, 2003, a total of 4,170,854 The Company has no shares of Company Class A Common Stock or Preferred Stock reserved for or otherwise subject to issuance, except that as of the close of business on October 27, 2006, there were 6,656,963 shares of the Common Stock subject to issuance pursuant to options outstanding under the plans of the Company identified in Section 5.2 of the Company Disclosure Schedule or the Company Stock Plans and 10,382,372 shares of the Common Stock subject to issuance pursuant to the Warrants. The name of the holder of each Company Stock Option, the exercise price of such Company Stock Option and the aggregate number of shares of Common Stock subject to such Company Stock Option are set forth on Section 5.2(a) of the Company Disclosure Schedule. 449,344 shares of the Common Stock are reserved for issuance pursuant to outstanding Stock Optionsthe ESPP, and no other shares of Company Class A Common Stock are subject to issuance pursuant to Stock Options or awards of Restricted Shares. Immediately prior to the Effective Time, no shares of Company Class A Preferred Stock or Company Class C Preferred Stock which 25,000 Shares will be outstanding and 25,000 shares of Company Class B Preferred Stock will be outstanding. Set forth in Section 4.2(a) issued at the conclusion of the Company Disclosure Schedule is a complete and accurate list Offering Period ending October 31, 2006. Each of the Company Stock Plans and the number of shares of Company Common Stock reserved for issuance pursuant to Stock Options outstanding as of April 29, 2003 under each such Company Stock Plan, and no other shares of Company Common Stock are subject to issuance pursuant to such Company Stock Plans. Since April 29, 2003, no shares of capital stock or other ownership interests of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and owned by the Company have been issued other than pursuant to Stock Options set forth on or a direct or indirect wholly owned Subsidiary of the Award ListCompany, in each case free and since April 29, 2003, no Stock Options or Restricted Shares have been grantedclear of any Lien. Except as set forth above, and as contemplated by Section 2.1, there There are no registration rights or preemptive or other outstanding (i) rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind which obligate the Company or any of its Subsidiaries to register, issue or sell any shares of capital stock (including Restricted Shares) or other voting securities of the Company, (ii) securities of the Company or any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exchangeable exercisable for, or giving any Person a right to subscribe for shares of capital stock or voting securities of the Company, (iii) options or other rights to acquire from the Company or any of its Subsidiaries, or obligations any securities of the Company or any of its Subsidiaries to issue or sellSubsidiaries, any capital stock, voting and no securities or securities obligations evidencing such rights are issued or outstanding. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or which are convertible into or exchangeable exercisable for capital stock or voting securities of having the Company, or (ivright to vote) equity equivalents, interests in with the ownership or earnings stockholders of the Company or other similar rights (collectively, "Company Securities"). Other than as contemplated by this Agreement, there are no outstanding obligations of the Company or on any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securitiesmatter.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of: (i) 278,000,000 of 1,500,000,000 shares of Company Common Stock, (A) 211,000,000 shares of which are designated as shares of Company Class A Common Stock and (B) 67,000,000 50,000,000 shares of which are designated as shares preferred stock, par value $0.001, of the Company Class B Common Stock and (ii) 10,000,000 shares of Company the “Preferred Stock, (A) 25,000 shares of which are designated as shares of Company Class A Preferred Stock, (B) 25,000 shares of which are designated as shares of Company Class B Preferred Stock and (C) 16,688 shares of which are designated as shares of Company Class C Preferred Stock”). As of April 29, 2003the date hereof, (ia) 18,978,291 7,000,000 shares of Company Class Series A Preferred Stock are issued and outstanding, 7,254,997 shares of Series E Preferred Stock are issued and outstanding and have no voting rights, (b) 24,027,924 shares of Common Stock were are issued and outstanding, (iic) 45,142,508 12,468,025 shares of Company Class B Common Stock were issued and outstanding, (iii) no shares of Company Class A Preferred Stock were issued and outstanding, (iv) 25,000 shares of Company Class B Preferred Stock were issued and outstanding and (v) 16,688 shares of Company Class C Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock and Company Preferred Stock have been validly issued, and are fully paid, nonassessable and free of preemptive rights. As of April 29, 2003, a total of 4,170,854 shares of Company Class A Common Stock were reserved for issuance pursuant to outstanding Stock Options, and no other shares of Company Class A Common Stock are reserved for or subject to issuance pursuant issuance. Schedule 3.6 sets forth a true and correct list of all outstanding rights, options or warrants to Stock Options or awards of Restricted Shares. Immediately prior to the Effective Time, no purchase shares of Company Class A Preferred Stock any class or Company Class C Preferred Stock will be outstanding and 25,000 shares series of Company Class B Preferred Stock will be outstanding. Set forth in Section 4.2(a) of the Company Disclosure Schedule is a complete and accurate list of the Company Stock Plans and the number of shares of Company Common Stock reserved for issuance pursuant to Stock Options outstanding as of April 29, 2003 under each such Company Stock Plan, and no other shares of Company Common Stock are subject to issuance pursuant to such Company Stock Plans. Since April 29, 2003, no shares of capital stock of the Company have been issued (collectively, the “Company Options”) and a true and correct list of each of the Company’s stock option, incentive, purchase or other than plans pursuant to Stock Options set forth on which options or warrants to purchase stock of the Award ListCompany may be issued (collectively, and since April 29, 2003, no Stock Options or Restricted Shares have been grantedthe “Existing Plans”). Except as set forth above, out on Schedule 3.6 and as contemplated by Section 2.1, there are no outstanding for (i) shares of capital stock (including Restricted Shares) or other voting securities Common Stock issuable pursuant to the exercise of the Companyoutstanding Company Options, (ii) shares of Common Stock issuable upon conversion of the Series A Preferred Stock, or the Series E Preferred Stock, (iii) securities issuable upon conversion of the Convertible Promissory Note, dated May 10, 2012, (the “MxXxxxx Note”), there are no shares of Common Stock or any other equity security of the Company issuable upon conversion or exchange of any security of the Company or any of its Subsidiaries convertible into nor any rights, options or exchangeable for warrants outstanding or other agreements to acquire shares of capital stock or voting securities of the Company, (iii) options or other rights to acquire from the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is contractually obligated to issue any shares of stock or to purchase, redeem or obligations otherwise acquire any of its outstanding shares of stock. Neither the Company nor any of its Subsidiaries has created any “phantom stock,” stock appreciation rights or other similar rights the value of which is related to or based upon the price or value of the Common Stock. Neither the Company nor any of its Subsidiaries has outstanding debt or debt instruments providing for voting rights with respect to the Company or such Subsidiary to the holders thereof. Other than pursuant to the Investor Rights Agreement, no stockholder of the Company or any of its Subsidiaries to issue or sell, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, or (iv) equity equivalents, interests in the ownership or earnings of the Company or other Person is entitled to any preemptive or similar rights (collectively, "Company Securities"). Other than as contemplated by this Agreement, there are no outstanding obligations to subscribe for shares of stock of the Company or any of its Subsidiaries. All of the issued and outstanding shares of Common Stock and Preferred Stock are duly authorized, validly issued, fully paid, and nonassessable. Other than pursuant to the Employment Agreements between the Company and MxXxxxx and Song, respectively, neither the Company nor any of its Subsidiaries has granted to repurchase, redeem any Person the right to demand or otherwise acquire request that the Company or such Subsidiary effect a registration under the Securities Act of any securities held by such Person or to include any securities of such Person in any such registration by the Company Securitiesor such Subsidiary.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of: (i) 278,000,000 22,000,000 shares of Company Class A Common Stock, (A) 211,000,000 of which as of the date hereof, 4,159,253 shares are issued and outstanding; 3,000,000 shares of Class B Common Stock, no par value ("Class B Common Stock"), of which as of the date hereof, 2,050,071 shares are issued and outstanding; and 3,000,000 shares of Preferred Stock, of which as of the date hereof, 1,222,221 shares have been issued in series designated as shares of Company the Series A Redeemable Convertible Preferred Stock, and are issued and outstanding. (The Class A Common Stock and (B) 67,000,000 shares of which are designated as shares of Company the Class B Common Stock are herein sometimes collectively referred to as the "Company Common Stock" and (ii) 10,000,000 shares of the Preferred Stock is sometimes referred to as the "Company Preferred Stock, (A".) 25,000 shares of which are designated as shares of Company Class A Preferred Stock, (B) 25,000 shares of which are designated as shares of Company Class B Preferred Stock and (C) 16,688 shares of which are designated as shares of Company Class C Preferred Stock. As of April 29, 2003, (i) 18,978,291 shares of Company Class A Common Stock were issued and outstanding, (ii) 45,142,508 shares of Company Class B Common Stock were issued and outstanding, (iii) no shares of Company Class A Preferred Stock were issued and outstanding, (iv) 25,000 shares of Company Class B Preferred Stock were issued and outstanding and (v) 16,688 shares of Company Class C Preferred Stock were issued and outstanding. All of the issued and outstanding shares of Company Common Stock and Company Preferred Stock have been duly authorized, validly issued, issued and are fully paid, nonassessable and free of preemptive rights, except as set forth in the Company Disclosure Schedule. As of April 29the date hereof, 2003, a total of 4,170,854 approximately 434,200 shares of Company Class A Common Stock were reserved for issuance pursuant to outstanding Stock Options, and no other shares of Company Class A Common Stock are subject reserved for issuance and issuable upon or otherwise deliverable in connection with the exercise of outstanding options to issuance purchase Class A Common Stock ("Company Options") issued pursuant to Stock Options or awards of Restricted Shares. Immediately prior to the Effective Time, no Management Incentive Plan and the Outside Directors Incentive Plan (the "Company Plans") and 833,611 shares of Company Class A Preferred Common Stock are reserved for issuance and issuable upon or otherwise deliverable in connection with the exercise of outstanding warrants to purchase Class A Common Stock ("Company Class C Preferred Stock will be outstanding and 25,000 shares of Company Class B Preferred Stock will be outstandingWarrants"). Set forth in Section 4.2(a3.2(a) of the Company Disclosure Schedule is a complete sets forth, as of the date hereof, (i) the persons to whom Company Options and accurate list Company Warrants have been granted, (ii) the exercise price for the Company Options and Company Warrants held by each such person and (iii) whether such Company Options are exercisable. Except as described in the Company Filed SEC Reports (as defined below) and as disclosed in Section 3.2(a) of the Company Stock Plans and the number of shares of Company Common Stock reserved for issuance pursuant to Stock Options outstanding Disclosure Schedule, as of April 29the date hereof, 2003 under each such Company Stock Plansince January 31, and no other shares of Company Common Stock are subject to issuance pursuant to such Company Stock Plans. Since April 29, 2003, 1996 (i) no shares of the Company's capital stock of the Company have been issued other than pursuant to Stock the exercise of Company Options set forth on the Award List, and since April 29, 2003, (ii) no Stock Options or Restricted Shares stock options have been grantedgranted by the Company. Except as set forth aboveabove or in Section 3.2(a) of the Company Disclosure Schedule, and as contemplated by Section 2.1of the date hereof, there are no outstanding (i) no shares of capital stock (including Restricted Shares) or other voting securities of the Company, (ii) no securities of the Company or any of its Subsidiaries Company Subsidiary convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) options no options, warrants or other rights to acquire from the Company or any of its SubsidiariesCompany Subsidiary, or and no obligations of the Company or any of its Subsidiaries Company Subsidiary to issue or sellissue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, or (iv) no equity equivalents, interests in the ownership or earnings of the Company or any Company Subsidiary or other similar rights (including stock appreciation rights) (the items listed in subclauses (i), (ii), (iii) and (iv) being referred to, collectively, as "Company Securities"). Other than as contemplated by this Agreement, there are ) and (v) no outstanding obligations of the Company or any of its Subsidiaries Company Subsidiary to repurchase, redeem or otherwise acquire any Company Securities. Except as set forth in Section 3.2(a) of the Company Disclosure Schedule, there are no shareholder agreements, voting trusts or other agreements or understandings to which the Company is a party or to which it is bound relating to the voting or registration of any shares of capital stock of the Company. Except as disclosed in Section 3.2(a) of the Company Disclosure Schedule, the Company has not taken any action that would result in any Company Stock Options that are unvested becoming vested in connection with or as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of: (i) 278,000,000 200,000,000 shares of Company Common Stock, and (Aii) 211,000,000 5,000,000 shares of preferred stock of the Company, par value $.01 per share, 400,000 shares of which are designated as shares of Company Class A Common Stock and (B) 67,000,000 shares of which are designated as shares of Company Class B Common Stock and (ii) 10,000,000 shares of Company Preferred Stock, (A) 25,000 shares of which are designated as shares of Company Class A Preferred Stock, (B) 25,000 shares of which are designated as shares of Company Class B Preferred Stock and (C) 16,688 shares of which are designated as shares of Company Class C Preferred Stock. As of April 29, 2003the date hereof, (i) 18,978,291 64,333,205 shares of Company Class A Common Stock were issued and outstanding, (ii) 45,142,508 shares of Company Class B Common Stock were issued and outstanding, (iii) no shares of Company Class A Preferred Stock were issued and outstanding, (iv) 25,000 shares of Company Class B Preferred Stock were issued and outstanding and (vii) 16,688 50,000 shares of Company Class C Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock and Company Preferred Stock have been validly issued, and are fully paid, nonassessable and free of preemptive rights. As of April 29, 2003the date hereof, a total of 4,170,854 (i) 4,937,802 shares of Company Class A Common Stock were reserved for issuance pursuant to outstanding Stock OptionsOptions and RSUs, and no other shares of Company Class A Common Stock are subject to issuance pursuant to Stock Options or awards of Restricted Shares. Immediately prior to the Effective Timeany other equity based awards, no (ii) 3,873,108 shares of Company Class A Preferred Common Stock or were reserved for issuance upon the exercise of currently outstanding warrants issued under the warrant agreements listed in Section 4.2(a) of the Company Class C Preferred Stock will be outstanding Disclosure Schedule (the "Warrant Agreements") and 25,000 (iii) 32,664,256 shares of Company Class B Preferred Common Stock will be outstandingwere reserved for issuance upon the exercise of Co-Investment Rights. Set forth in Section 4.2(a) of the Company Disclosure Schedule is a complete and accurate list of (i) the Company Stock Plans and the number of shares of Company Common Stock reserved for issuance pursuant to Stock Options outstanding as of April 29, 2003 the date hereof under each such Company Stock Plan, and no other shares of Company Common Stock are subject to issuance pursuant to such Company Stock Plans, (ii) all warrant agreements to acquire capital stock of the Company and the number of shares of Company Common Stock reserved for issuance pursuant to such warrant agreements, and no other shares of capital stock of the Company are subject to issuance pursuant to such warrant agreements and (iii) all Co-Investment Agreements to acquire capital stock of the Company and the number of shares of Company Common Stock reserved for issuance pursuant to such Co-Investment Agreements, and no other shares of capital stock of the Company are subject to issuance pursuant to such Co-Investment Agreements. Since April 29January 19, 20032005, no shares of capital stock of the Company have been issued other than pursuant to Stock Options set forth on the Award List, Warrant Agreements or Co-Investment Agreements existing as of date hereof, and since April 29January 19, 20032005, no Stock Options Options, Restricted Shares, Warrants or Restricted Shares Co-Investment Rights have been granted. Except as set forth above, and as contemplated by above or in Section 2.14.2(a) of the Company Disclosure Schedule, there are no outstanding (i) shares of capital stock (including Restricted Shares) or other voting securities of the Company, (ii) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) options options, warrants or other rights to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue or sell, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, or (iv) equity equivalents, interests in the ownership or earnings of the Company or other similar rights (collectively, "Company Securities"). Other than as contemplated by this Agreement, Stockholders' Agreement or employment agreements set forth in Section 4.10(a) of the Company Disclosure Schedule, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities.