Common use of Company Capital Structure Clause in Contracts

Company Capital Structure. (a) Immediately prior to the transactions contemplated hereunder, the authorized capital stock of the Company consists of (i) 10,000,000 shares of Company Common Stock, $0.00001 par value per share (“Common Stock”) of which 8,000,000 are issued and outstanding (which such amounts include the shares issuable upon exercise of the Company Options on the Closing Date). The Company Common Stock, including all shares subject to the Company’s right of repurchase, is held of record beneficially by the Persons with the addresses and in the amounts and represented by the certificates set forth on Schedule 3.4(a). All outstanding shares of Company Common Stock (i) have been duly authorized and validly issued and are fully paid, non-assessable and not subject to preemptive rights or similar rights created by statute, the Company’s Articles of Incorporation, the By-Laws of the Company or any agreement or document to which the Company is a party or by which it is bound, and (ii) have been offered, sold, issued and delivered by the Company in all material respects in compliance with all applicable Laws, including federal and state corporate and securities Laws. There are no declared or accrued but unpaid dividends with respect to any shares of Company Common Stock. Except as set forth in this Section 3.4, as of the date of this Agreement no shares of Company Common Stock, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company or any securities exchangeable or convertible into or exercisable for such capital stock, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company, were issued, reserved for issuance or outstanding. Except as set forth on Schedule 3.4(a), there are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which Shareholders of the Company may vote. Except as set forth on Schedule 3.4, the Company has never repurchased, redeemed or otherwise acquired or caused the repurchase, redemption or acquisition of any shares of Company Common Stock or other securities of the Company, and there are no amounts owed or which may be owed to any Person by the Company as a result of any repurchase, redemption or acquisition of any shares of Company Common Stock or other securities of the Company. There is no claim or basis for such a claim to any portion of the Merger Consideration except as set forth in Schedule 1.2 by any current or former Shareholder, option holder or warrant holder of the Company, or any other Person.

Company Capital Structure. (a) Immediately prior to the transactions contemplated hereunder, the authorized capital stock of the The issued Company Capital Shares consists solely of (i) 10,000,000 26,874,397 Company Ordinary Shares, and (ii) 98,069,431 Company Preferred Shares. There are no other issued and outstanding Company Capital Shares and no commitments or Contracts to issue any Company Capital Shares other than pursuant to the exercise of Company Options set forth on Schedule 3.5(b)-1 of the Disclosure Letter, and the Company Warrants set forth on Schedule 3.5(c) of the Disclosure Letter. The Company holds no treasury shares. Schedule 3.5(a) of the Disclosure Letter sets forth, as of the Agreement Date a true, correct and complete list of the Company Shareholders, and which further sets forth for each such Person: (i) the number and type of such shares of Company Common Capital Shares so owned by each such Company Shareholder, (ii) the applicable stock certificate number(s) representing such shares, (iii) the extent to which the shares are Company Restricted Stock, $0.00001 par value per share (“Common Stock”iv) whether any of such shares are or were eligible for an election under Section 83(b) of which 8,000,000 are issued and outstanding (which such amounts include the shares issuable upon exercise Code or section 431 of the Company Options on the Closing Date). The Company Common StockITEPA, including all shares subject the date of issuance of such shares, and, to the Company’s right Knowledge, whether such election under Section 83(b) of repurchasethe Code or section 431 of ITEPA (as applicable) was timely made, and (v) whether any of such shares were issued upon the “early exercise” of a Company Option that was granted so as to qualify as an “incentive stock option” as defined in Section 422 of the Code. Each Company Preferred Share is held of record beneficially by the Persons with the addresses and in the amounts and represented by the certificates set forth convertible on Schedule 3.4(a)a one-share for one-share basis into Company Ordinary Shares. All outstanding shares of Company Common Stock (i) have been duly authorized and validly issued and outstanding Company Capital Shares are duly authorized, validly issued, fully paid, paid and non-assessable and not subject are free of any Encumbrances, other than any restrictions pursuant to federal or state securities Laws outstanding subscriptions, preemptive rights or similar “put” or “call” rights created by statute, the Company’s Articles of Incorporation, the By-Laws of the Company Charter Documents or any agreement or document Contract to which the Company is a party or by which it is bound, and (ii) have been offered, sold, issued and delivered by the Company in all material respects in compliance with all applicable Laws, including federal and state corporate and securities Laws. There are no declared or accrued but unpaid dividends with respect to any shares of Company Common Stock. Except as set forth in this Section 3.4, as of the date of this Agreement no shares of Company Common Stock, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company or any securities exchangeable or convertible into or exercisable for such capital stock, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company, were issued, reserved for issuance or outstandingits assets is bound. Except as set forth on Schedule 3.4(a), there are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which Shareholders of the Company may vote. Except as set forth on Schedule 3.4, the The Company has never repurchaseddeclared or paid any dividends on any Company Capital Shares. There is no Liability for dividends accrued and unpaid by the Company. The Company is not under any obligation to register under the Securities Act or any other Law any Company Capital Shares, redeemed any Equity Interests or otherwise acquired or caused the repurchase, redemption or acquisition of any shares of Company Common Stock or other securities of the Company, and there are no amounts owed whether currently outstanding or which that may subsequently be owed to any Person by issued. To the Company as a result of any repurchase, redemption or acquisition of any shares of Company Common Stock or other securities of the Company. There is no claim or basis for such a claim to any portion of the Merger Consideration except as set forth in Schedule 1.2 by any current or former Shareholder, option holder or warrant holder Knowledge of the Company, no Company Shareholder that is a limited partnership or a limited liability company has any limited partners or members who are employees of Purchaser. All issued and outstanding Company Capital Shares and all Company Options, Company Warrants and any other securities convertible into Company Capital Shares were issued in compliance with Law and all requirements set forth in the Charter Documents and any applicable Contracts to which the Company is a party or by which the Company or any other Personof its assets is bound.

Company Capital Structure. (a) Immediately prior to the transactions contemplated hereunder, the The authorized share capital stock of the Company consists of (i) 10,000,000 shares an unlimited number of Common Shares (“Company Common StockShares”), $0.00001 par value per share (“Common Stock”) of which 8,000,000 5,430,007 Company Common Shares are issued and outstanding and (ii) an unlimited number of Preferred Shares, none of which such amounts include are issued and outstanding. Except as set out in the previous sentence, the Company does not have any other shares issuable upon exercise authorized, issued or outstanding. The shares in the capital of the Company Options on the Closing Date). The Company Common Stock, including all shares subject to the Company’s right of repurchase, is are held of record and to the knowledge of the Company, beneficially by the Persons with the addresses and in the amounts and represented by the certificates set forth on in Schedule 3.4(a)2.4(a) of the Company Disclosure Schedules. All outstanding shares of the Company Common Stock (i) have been duly authorized and validly [***] Certain information in this agreement has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. issued and are fully paid, non-assessable and not subject to preemptive rights or similar rights created by statute, the Company’s Articles articles of Incorporationamalgamation, the Byby-Laws of the Company laws or any agreement or document to which the Company is a party or by which it is bound, and (ii) have been offered, sold, issued and delivered by the Company in all material respects in compliance with all applicable Laws, including federal and state Canadian corporate and securities Laws. There are no declared or accrued but unpaid dividends with respect to any shares in the capital of Company Common Stockthe Company. Except as set forth in this Section 3.4Schedule 2.4(a) of the Company Disclosure Schedules, since December 31, 2017, there have been no dividends or distributions with respect to any shares in the capital of the Company. Except for the 5,430,007 Company Common Shares outstanding, as of the date of this Agreement Agreement, no shares in the capital of Company Common Stockthe Company, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company or any securities exchangeable or convertible into or exercisable for such capital stockshares, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company, were issued, are reserved for issuance or outstanding. Except as set forth on Schedule 3.4(a), there There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which Shareholders of the Company may vote. Except as set forth on in Schedule 3.42.4(a), the Company has never repurchased, redeemed or otherwise acquired or caused the repurchase, redemption or acquisition of any shares in the capital of the Company Common Stock or other securities of the Company, and there . There are no amounts owed or which may be owed to any Person by the Company as a result of any repurchase, redemption or acquisition of any shares in the capital of the Company Common Stock or other securities of the Company. There is no claim or basis for such a claim to any portion of the Merger Consideration Purchase Price except as set forth provided in Schedule 1.2 the Seller Allocation Spreadsheet by any current or former Shareholdershareholder, option holder or warrant holder of the Company, or any other Person.

Company Capital Structure. (a) Immediately prior to the transactions contemplated hereunder, the The authorized capital stock of the Company consists of (i) 10,000,000 50,000,000 shares of Company Common Stock, $0.00001 par value per share (“Common Stock”) of which 8,000,000 30,963,006.5 shares are issued and outstanding (outstanding, and 102,500 shares of Preferred Stock, of which such amounts include 100,000 shares have been designated Class A Preferred Stock, 60,390 of which are issued and outstanding, and 2,500 shares have been designated Class B Preferred Stock, all of which are issued and outstanding. As of the shares issuable upon exercise date hereof, the capitalization of the Company Options on is as set forth in Section 2.2(a) of the Closing Date)Disclosure Schedule. The Company Common Stock, including all shares subject to the Company’s right of repurchase, Capital Stock is held of record beneficially by the Persons persons with the record addresses and in the amounts and represented by the certificates set forth on Schedule 3.4(a)in Section 2.2(a) of the Disclosure Schedule. All outstanding shares of Company Common Capital Stock (i) have been are duly authorized authorized, validly issued, fully paid and validly issued and are fully paid, non-assessable and not subject to preemptive rights or similar rights created by statute, the Company’s Articles of Incorporation, the By-Laws Charter Documents of the Company Company, or any agreement or document Contract to which the Company is a party or by which it is bound, and (ii) have been offered, sold, issued in compliance with federal and delivered state securities laws. All outstanding shares of Company Capital Stock and Company Options have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company in all material respects Company) in compliance with all applicable Laws, including federal and state corporate securities laws. The Company has not, and securities Lawswill not have, suffered or incurred any Liability (contingent or otherwise) or claim, loss, damage, deficiency, cost or expense relating to or arising out of the issuance or repurchase of any Company Capital Stock or options or warrants to purchase Company Capital Stock, or out of any Contract relating thereto (including any amendment of the terms of any such Contract). There Except as set forth in Section 2.2(a) of the Disclosure Schedule, there are no declared or accrued but unpaid dividends with respect to any shares of Company Common Capital Stock. Except as set forth in this Section 3.4, as of The Company has no capital stock other than the date of this Agreement no shares of Company Common Stock, other equity securities, partnership interests or similar ownership interests or other voting securities of Stock and the Company or any securities exchangeable or convertible into or exercisable for such capital stockPreferred Stock authorized, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company, were issued, reserved for issuance issued or outstanding. Except as set forth on Schedule 3.4(a), there are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which Shareholders of the Company may vote. Except as set forth on Schedule 3.4, the The Company has never repurchased, redeemed or otherwise acquired or caused the repurchase, redemption or acquisition of any shares of no Company Capital Stock that is unvested (excluding Common Stock or other securities of the Company, and there are no amounts owed or which may be owed subject to any Person by the Company as a result of any repurchase, redemption or acquisition of any shares of Company Common Stock or other securities of the Company. There is no claim or basis for such a claim to any portion of the Merger Consideration except as set forth in Schedule 1.2 by any current or former Shareholder, option holder or warrant holder of the Company, or any other Personunvested Options).

Company Capital Structure. (a) Immediately prior to the transactions contemplated hereunderEffective Time, ------------------------- the authorized capital stock of the Company consists of (i) 10,000,000 1,250,000 shares of Company Common Stock, $0.00001 0.01 par value per share (“value. There are 959,500 shares of the Company Common Stock”) of which 8,000,000 are Stock issued and outstanding (which such amounts include the shares issuable upon exercise of the Company Options on the Closing Date). The Company Common Stock, including all shares subject to the Company’s right of repurchase, is held of record beneficially by the Persons with the addresses persons, and in the amounts and represented by the certificates amounts, set forth on Schedule 3.4(a)Exhibit G. At the time of the Closing, such list shall have been appropriately adjusted to reflect option exercises and stock repurchases since the date hereof. No shares of any holder were subject to repurchase upon termination of employment as of the Effective Time. All outstanding shares of Company Common Stock (i) have been are duly authorized authorized, validly issued, fully paid and validly issued and are fully paid, non-non- assessable and not subject to preemptive rights or similar rights created by statute, the Company’s Articles of Incorporation, the By-Laws Organization or Bylaws of the Company or any agreement or document to which the Company is a party or by which it is bound. The Company has reserved 50,000 shares of Common Stock for issuance to employees and consultants pursuant to the Company Stock Option Plan, of which zero (0) shares have been exercised, and 20,000 shares are subject to outstanding, unexercised options (ii) have been offered, sold, issued and delivered by the Company in all material respects in compliance with all applicable Laws, including federal and state corporate and securities Laws"Options"). There The holders of the Options are no declared or accrued but unpaid dividends with respect to any shares of Company Common Stocklisted on Exhibit G hereto. Except as set forth in this Section 3.4the Disclosure Schedule, as there are no other options, warrants, calls, rights, commitments or agreements of any character to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the date of this Agreement no shares of Company Common Stock, other equity securities, partnership interests or similar ownership interests or other voting securities capital stock of the Company or any securities exchangeable or convertible into or exercisable for such capital stock, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company, were issued, reserved for issuance or outstanding. Except as set forth on Schedule 3.4(a), there are no bonds, debentures, notes or other indebtedness of obligating the Company having to grant, extend, accelerate the right to vote (or convertible intovesting of, change the price of, or exchangeable forotherwise amend or enter into any such option, securities having the right to vote) on any matters on which Shareholders of the Company may vote. Except as set forth on Schedule 3.4warrant, the Company has never repurchasedcall, redeemed right, commitment or otherwise acquired or caused the repurchase, redemption or acquisition of any shares of Company Common Stock or other securities of the Company, and there are no amounts owed or which may be owed to any Person by the Company as a result of any repurchase, redemption or acquisition of any shares of Company Common Stock or other securities of the Company. There is no claim or basis for such a claim to any portion of the Merger Consideration except as set forth in Schedule 1.2 by any current or former Shareholder, option holder or warrant holder of the Company, or any other Personagreement.

Company Capital Structure. (a) Immediately prior to the transactions contemplated hereunder, the The authorized capital stock of the Company consists of (i) 10,000,000 100,000 shares of Company Common Stock and 357.08 shares of Company Preferred Stock. As of the date hereof, $0.00001 par value per share (“there are 80,013 shares of Company Common Stock”) Stock and 357.08 shares of which 8,000,000 are Company Preferred Stock issued and outstanding (which such amounts include held by the persons, and in the amounts, set forth in Section 2.2 of the Disclosure Schedule. As of the date hereof, there are 356 shares issuable of Company Common Stock held in treasury. As of the date hereof, there are 16,912 shares of the Company Common Stock reserved for issuance upon the exercise of the Company Options Options. Section 2.2 of the Disclosure Schedule sets forth the following information with respect to each such Company Option: (i) the date on which each such Company Option was granted; (ii) the Closing Date)number of shares of Company Common Stock subject to each such Company Option; (iii) the exercise price for each such Company Option; and (vi) the name of the Option Holder. The Company Common Stock, including has made available to Parent accurate and complete copies of all shares subject to Company Option Agreements evidencing the Company’s right Company Options listed on Section 2.2 of repurchase, is held of record beneficially by the Persons with the addresses and in the amounts and represented by the certificates Disclosure Schedule. Except as set forth on Schedule 3.4(a). All in Section 2.2 of the Disclosure Schedule, all outstanding shares of Company Common Stock (i) and Company Preferred Stock have been duly authorized and validly issued issued, and are fully paid, paid and non-assessable and not subject to preemptive rights or similar rights created by statute, the Company’s Articles Certificate of Incorporation, the By-Laws Incorporation or Bylaws of the Company or any agreement or document to which the Company is a party or by which it is bound, and (ii) have been offered, sold, issued and delivered by the Company in all material respects in compliance with all applicable Laws, including federal and state corporate and securities Laws. There are no declared or accrued but unpaid dividends with respect to any shares of Company Common Stock. Except as set forth in this Section 3.4, as 2.2 of the date Disclosure Schedule, there are no other options, warrants, calls, rights, commitments or agreements of this Agreement no any character to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Company Common Stock, other equity securities, partnership interests or similar ownership interests or other voting securities the capital stock of the Company or any securities exchangeable or convertible into or exercisable for such capital stock, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company, were issued, reserved for issuance or outstanding. Except as set forth on Schedule 3.4(a), there are no bonds, debentures, notes or other indebtedness of obligating the Company having to grant, extend, accelerate the right to vote (or convertible intovesting of, change the price of, or exchangeable forotherwise amend or enter into any such option, securities having the right to vote) on any matters on which Shareholders of the Company may vote. Except as set forth on Schedule 3.4warrant, the Company has never repurchasedcall, redeemed right, commitment or otherwise acquired or caused the repurchase, redemption or acquisition of any shares of Company Common Stock or other securities of the Company, and there are no amounts owed or which may be owed to any Person by the Company as a result of any repurchase, redemption or acquisition of any shares of Company Common Stock or other securities of the Company. There is no claim or basis for such a claim to any portion of the Merger Consideration except as set forth in Schedule 1.2 by any current or former Shareholder, option holder or warrant holder of the Company, or any other Personagreement.

Company Capital Structure. (a) Immediately prior to the transactions contemplated hereunder, the The authorized capital stock of the Company consists of (i) 30,000,000 shares of Common Stock, of which 4,476,500 shares are issued and outstanding as of the date hereof, and (ii) 10,000,000 shares of Preferred Stock, 7,000,000 shares of which have been designated Series A Preferred Stock, of which 6,694,600 are issued and outstanding as of the date hereof. As of the date hereof, the capitalization of the Company, including the names, addresses and domiciles of the securities holders, is as set forth on Schedule 2.2(a). -------------- Assuming the same total capitalization as on the date hereof, the total number of shares of Company Common Stock outstanding as of immediately prior to the Effective Time (assuming the conversion, exercise or exchange of all securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, $0.00001 par value per share (“Common Stock”) of which 8,000,000 are issued including without limitation the Company Preferred Stock and outstanding (which such amounts include the shares issuable upon exercise of the all Company Options on the Closing Date). The Company Common Stock, including all shares subject to the Company’s right of repurchase, is held of record beneficially by the Persons with the addresses and in the amounts and represented by the certificates Options) will be as set forth on in Schedule 3.4(a2.2(a). All --------------- outstanding shares of Company Common Capital Stock (i) have been are duly authorized authorized, validly issued, fully paid and validly issued and are fully paid, non-assessable and not subject to preemptive rights or similar rights created by statute, the Company’s Articles Certificate of Incorporation, the By-Laws Incorporation or Bylaws of the Company Company, or any agreement or document to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock, Company Common Stock issued upon exercise of Company Options and (ii) Company Options have been offered, sold, issued or repurchased (in the case of shares that were outstanding and delivered repurchased by the Company in all material respects Company) in compliance with all applicable Laws, including federal and state corporate securities laws. The designations, powers, preferences, rights, qualifications, limitations and securities Lawsrestrictions in respect of the Company Preferred Stock are as set forth in the Company's Certificate of Incorporation. There are not outstanding any adjustments made or required to be made to the conversion rates applicable to Company Preferred Stock set forth in the Company's Certificate of Incorporation. There are no declared or accrued but unpaid dividends with respect to any shares of Company Common Capital Stock. Except The Company has no other capital stock authorized, issued or outstanding. The requisite vote required to approve the Merger under applicable law, the Company's Certificate of Incorporation, Bylaws and any other agreement to which the Company or any other Stockholder of the Company is bound is as set forth in this Section 3.4follows: holders of a majority of each class of outstanding shares. Each share of Company Preferred Stock is convertible to Company Common Stock on a one-to-one basis and, as of the date Effective Time, each share of this Agreement no shares of Company Preferred Stock will be converted to Company Common Stock. Holders of Company Capital Stock sufficient to approve the Merger, other equity securities, partnership interests or similar ownership interests or other voting securities each of whom is an "affiliate" of the Company or any securities exchangeable or convertible into or exercisable for such capital stockas defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, other equity securities, partnership interests or similar ownership interests or other voting securities of as amended (the Company, were issued, reserved for issuance or outstanding. Except as set forth on Schedule 3.4(a"Exchange Act"), there are no bonds, debentures, notes or other indebtedness of have executed the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which Shareholders of the Company may vote. Except as set forth on Schedule 3.4, the Company has never repurchased, redeemed or otherwise acquired or caused the repurchase, redemption or acquisition of any shares of Company Common Stock or other securities of the Company, and there are no amounts owed or which may be owed to any Person by the Company as a result of any repurchase, redemption or acquisition of any shares of Company Common Stock or other securities of the Company. There is no claim or basis for such a claim to any portion of the Merger Consideration except as set forth in Schedule 1.2 by any current or former Shareholder, option holder or warrant holder of the Company, or any other PersonVoting Agreement.

Company Capital Structure. (a) Immediately prior to the transactions contemplated hereunder, the The authorized capital stock of the Company consists of (i) 10,000,000 55,000,000 shares of Company Common Stock, $0.00001 0.001 par value per share (“Company Common Stock”) ), of which 8,000,000 30,000,008 shares are issued and outstanding and 17,500,000 shares of Preferred Stock, $0.001 par value per share (which such amounts include the shares issuable upon exercise of the “Company Options on the Closing Date). The Preferred Stock” and together with Company Common Stock, including “Company Capital Stock”), all of which are designated as “Series 1 Convertible Preferred Stock,” of which 16,877,834 shares subject are issued and outstanding. The Company does not have any other shares of preferred stock or any other shares of capital stock authorized, issued or outstanding. The Company Capital Stock is held of record and to the Company’s right of repurchaseknowledge, is held of record beneficially by the Persons with the addresses and in the amounts and represented by the certificates set forth on Schedule 3.4(a). All outstanding shares of Company Common Capital Stock (i) have been duly authorized and validly issued and are fully paid, non-assessable and not subject to preemptive rights or similar rights created by statute, the Company’s Articles certificate of Incorporationincorporation, the Byby-Laws of the Company laws or any agreement or document to which the Company is a party or by which it is bound, and (ii) have been offered, sold, issued and delivered by the Company in all material respects in compliance with all applicable Laws, including federal and state corporate and securities Laws. There are no declared or accrued but unpaid dividends with respect to any shares of Company Common Capital Stock, except as set forth in the Company’s Certificate of Incorporation. Except as set forth in this Section 3.4above, as of the date of this Agreement no shares of Company Common Capital Stock, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company or any securities exchangeable or convertible into or exercisable for such capital stock, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company, were issued, reserved for issuance or outstanding. Except as set forth on Schedule 3.4(a), there There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which Shareholders Stockholders of the Company may vote. Except as set forth on Schedule 3.43.4(a), the Company has never not since December 15, 2009, repurchased, redeemed or otherwise acquired or caused the repurchase, redemption or acquisition of any shares of Company Common Capital Stock or other securities of the Company, and there are no amounts owed or which may be owed to any Person person by the Company as a result of any repurchase, redemption or acquisition of any shares of Company Common Capital Stock or other [***] Certain information in this agreement has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. securities of the Company. There is no claim or basis for such a claim to any portion of the Merger Consideration except as set forth provided in Schedule 1.2 the Allocation Certificate by any current or former Shareholderstockholder, option holder or warrant holder of the Company, or any other Person.

Company Capital Structure. (a) Immediately prior to the transactions contemplated hereunder, the The authorized capital stock of the Company consists of (i) 10,000,000 250,000,000 shares of Company authorized Class A Common Stock, $0.00001 par value per share (“Common Stock”) Stock of which 8,000,000 57,316,042 shares are issued and outstanding (which such amounts include the shares issuable upon exercise as of the Company Options on the Closing Date). The Company date hereof and 80,000,000 shares of authorized Class B Common Stock, including all of which 39,869,348 shares subject are issued and outstanding as of the date hereof. As of the Effective Time, the number of outstanding shares of Company Capital Stock shall not exceed 97,185,390 shares, except for such number of shares issued pursuant to Company Options after the date hereof and through to the Company’s right Effective Time. As of repurchasethe date hereof, the Company Capital Stock is held of record beneficially by the Persons with the addresses persons and in the amounts and represented by the certificates set forth on Schedule 3.4(a)in Section 2.3(a) of the Disclosure Schedule. All outstanding shares of Company Common Capital Stock (i) have been are duly authorized authorized, validly issued, fully paid and validly issued and are fully paid, non-assessable and not subject to preemptive rights or similar rights created by statute, the Company’s Amended and Restated Articles of Incorporation, the By-Laws Incorporation or Amended and Restated Bylaws of the Company or any agreement or document to which the Company is a party or by which it is bound, bound and (ii) have been offered, sold, issued and delivered by the Company in all material respects in compliance with all applicable Laws, including federal and state corporate and securities Lawslaws. There are no declared or accrued but unpaid dividends with respect to any shares of the Company's Capital Stock. The Company has no other capital stock authorized, issued or outstanding. (b) Except for the Company's Option Plans, the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 86,000,000 shares of Company Common Stock. Except as set forth in this Section 3.4, Stock for issuance to employees and consultants pursuant to the Option Plans of which options to purchase 18,639,114 shares of Company Capital Stock have been issued as of the date hereof of this Agreement no which 10,003,812 shares remain subject to options unexercised as of the date hereof. On June 13, 1998, the Company's Board of Directors granted options to purchase 1,084,450 shares of Company Class A Common Stock, other equity securities, partnership interests or similar ownership interests or other voting securities Stock to the individuals indicated on Section 2.3(b) of the Company or any securities exchangeable or convertible into or exercisable for such capital stock, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company, were issued, reserved for issuance or outstandingDisclosure Schedule. Except as set forth on Schedule 3.4(a)Section 2.3(b) of the Disclosure Schedule, there are is no bonds, debentures, notes outstanding Company Capital Stock which is subject to vesting or other indebtedness Company Options. Section 2.3(b) of the Company having Disclosure Schedule sets forth the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which Shareholders name of the holder of any Company may vote. Except as set forth on Schedule 3.4Capital Stock subject to vesting, the Company has never repurchased, redeemed or otherwise acquired or caused the repurchase, redemption or acquisition number of any shares of Company Common Capital Stock or other securities subject to vesting and the vesting schedule for such Company Capital Stock, including the extent vested as of the Companymost recent practicable date, and there are no amounts owed or which may be owed to any Person by the Company as a result of any repurchase, redemption or acquisition of any shares of Company Common Stock or other securities of the Company. There is no claim or basis for such a claim to any portion of the Merger Consideration except as set forth in Schedule 1.2 by any current or former Shareholder, option holder or warrant holder of the Company, or any other Person.8

Company Capital Structure. (a) Immediately prior to the transactions contemplated hereunder, the The authorized capital stock of the Company consists of (i) 10,000,000 25,000,000 shares of Company Common Stock, $0.00001 par value per share (“Common Stock”) of which 8,000,000 13,763,661 shares are issued and outstanding as of the date hereof and (ii) 2,500,000 shares of Company Preferred Stock, of which such amounts include 2,500,000 shares are designated Series A Preferred Stock, of which 1,852,749 are issued and outstanding as of the shares issuable upon exercise date hereof. As of the date hereof, the capitalization of the Company Options is as set forth in Section 2.2(a) of the Disclosure Schedule. Assuming the same total capitalization as on the Closing Date). The date hereof, the total number of shares of Company Common Stock outstanding as of immediately prior to the Effective Time (assuming the conversion, exercise or exchange of all securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, including and the exercise of all shares subject to Company Options) will be as set forth in Section 2.2(a) of the Company’s right of repurchase, Disclosure Schedule. The Company Capital Stock is held of record beneficially by the Persons persons with the domicile addresses and in the amounts and represented by the certificates set forth on Schedule 3.4(a)in Section 2.2(a) of the Disclosure Schedule. All outstanding shares of Company Common Capital Stock (i) have been are duly authorized authorized, validly issued, fully paid and validly issued and are fully paid, non-assessable and not subject to preemptive rights or similar rights created by statute, the Company’s Articles articles of Incorporation, the By-Laws incorporation or bylaws of the Company Company, or any agreement or document to which the Company is a party or by which it is bound, . All outstanding shares of Company Capital Stock and (ii) Company Options have been offered, sold, issued or repurchased (in the case of shares that were outstanding and delivered repurchased by the Company in all material respects Company) in compliance with all applicable Lawsfederal, state, foreign or local statutes, laws, rules or regulations, including federal and state corporate securities laws. The Company has not, and securities Lawswill not have, suffer or incur any, liability (contingent or otherwise) or Loss (as defined in Section 7.2(a)) relating to or arising out of the issuance or repurchase of any Company Capital Stock or Company Options. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of the Company Preferred Stock are as set forth in the Company's Articles of Incorporation. There are not outstanding any adjustments made or required to be made to the conversion rates applicable to Company Preferred Stock set forth in the Company's Articles of Incorporation. There are no declared or accrued but unpaid dividends with respect to any shares of Company Common Stock. Except as set forth in this Section 3.4The Company has no other capital stock authorized, as issued or outstanding. The requisite vote required to approve the Merger under applicable law, the Company's Articles of Incorporation, the date of this Agreement no shares of Company Common StockCompany's Bylaws, and any other equity securities, partnership interests or similar ownership interests or other voting securities of agreement to which the Company or any securities exchangeable or convertible into or exercisable for such capital stock, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company, were issued, reserved for issuance or outstanding. Except as set forth on Schedule 3.4(a), there are no bonds, debentures, notes or other indebtedness shareholder of the Company having is bound is as follows: the right to affirmative vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which Shareholders of a majority of the Company may vote. Except as set forth on Schedule 3.4, the Company has never repurchased, redeemed or otherwise acquired or caused the repurchase, redemption or acquisition of any outstanding shares of Company Common Stock or other securities and a majority of the Companyoutstanding shares of Company Preferred Stock, and there are no amounts owed or which may be owed to any Person by the Company each voting as a result separate class. Each share of any repurchaseCompany Preferred Stock is convertible to Company Common Stock on a one-to-two basis and as of the Effective Time, redemption or acquisition each share of any shares Company Preferred Stock will be converted to Company Common Stock. Holders of Company Common Stock or other securities and Company Preferred Stock sufficient to approve the Merger, each of whom is an "affiliate" of the Company. There is no claim or basis for such Company as defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), have each executed a claim to any portion Voting Agreement or, in the case of NEC, the Merger Consideration except as set forth in Schedule 1.2 by any current or former Shareholder, option holder or warrant holder of the Company, or any other PersonShareholder Agreement.

Company Capital Structure. (a) Immediately prior to the transactions contemplated hereunder, the The authorized capital stock of the Company consists of (i) 10,000,000 shares of Company Common Stock, $0.00001 par value per share (“Common Stock”) of which 8,000,000 are issued and outstanding (which such amounts include the shares issuable upon exercise of the Company Options on the Closing Date). The Company Common Stock, including all shares subject to the Company’s right of repurchase, is held of record beneficially by the Persons with the addresses and in the amounts and represented by the certificates set forth on Schedule 3.4(a). All outstanding 50,000 shares of Company Common Stock and 20,000 shares of Company Preferred Stock. As of the date hereof, (i) have been duly authorized and validly issued and are fully paid, non-assessable and not subject to preemptive rights or similar rights created by statute, the Company’s Articles of Incorporation, the By-Laws of the Company or any agreement or document to which the Company is a party or by which it is bound, and (ii) have been offered, sold, issued and delivered by the Company in all material respects in compliance with all applicable Laws, including federal and state corporate and securities Laws. There are no declared or accrued but unpaid dividends with respect to any 22,060.998 shares of Company Common StockStock are issued and outstanding, (ii) 1,918 shares of Company Common Stock are held in the treasury of the Company, (iii) 4,644.940 shares of Company Preferred Stock are issued and outstanding; and (iv) 100 shares of Company Preferred Stock are held in the treasury of the Company. Section 3.03(a) of the Company Disclosure Schedule shows the number of Company options and warrants and the number of shares of Company Common Stock reserved for future issuance pursuant to stock options and warrants granted and outstanding as of the date hereof and the Company Stock Option Plans, which are the Company's only stock option plans. Except as set forth in this Section 3.4, as 3.03(a) of the date of this Agreement Company Disclosure Schedule there are no unexercised Company Options or warrants exercisable to purchase Company Common Stock or Company Preferred Stock. All shares of Company Common StockStock subject to issuance as specified above are duly authorized and, other equity securitiesupon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, partnership interests or similar ownership interests or other voting securities of the Company or any securities exchangeable or convertible into or exercisable for such capital stock, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company, were shall be validly issued, reserved for issuance or outstandingfully paid and nonassessable. Except as set forth on Schedule 3.4(a)Section 3.03(a) of the Company Disclosure Schedule, there are no bondsobligations, debenturescontingent or otherwise, notes or other indebtedness of the Company having the right to vote (or convertible intorepurchase, or exchangeable for, securities having the right to vote) on any matters on which Shareholders of the Company may vote. Except as set forth on Schedule 3.4, the Company has never repurchased, redeemed redeem or otherwise acquired acquire any shares or caused the repurchase, redemption other units of Company Common Stock or acquisition of any Company Preferred Stock. The shares of Company Common Stock or other securities and Company Preferred Stock issued and outstanding are duly authorized, validly issued, fully paid and nonassessable and have not been issued in violation of any preemptive rights. In the event of the Company, exercise of warrants and there are no amounts owed or which may be owed to any Person by stock options and the Company as a result conversion of any repurchase, redemption or acquisition of any shares of Company Common Preferred Stock or other securities of in accordance with their terms, the Company. There is no claim or basis for Company shall update this representation and warranty, it being agreed that such a claim to any portion of events shall not affect the aggregate Merger Consideration except as set forth in Schedule 1.2 by any current or former Shareholder, option holder or warrant holder of the Company, or any other PersonConsideration.