Common use of Company Options and Company Warrants Clause in Contracts

Company Options and Company Warrants. As of the date of this Agreement, (i) 1,025,396 shares of Company Common Stock are reserved for issuance pursuant to the Company Stock Plan, of which 694,114 shares are subject to outstanding Company Options, (ii) 70,000 shares of Company Common Stock are reserved for issuance upon exercise of outstanding Common Warrants, (iii) 42,855 shares of Series B Preferred Stock are reserved for issuance upon exercise of outstanding Series B Warrants, (iv) 33,689 shares of Series C Preferred Stock are reserved for issuance upon exercise of outstanding Series C Warrants, and (v) 4,807 shares of Series D Preferred Stock are reserved for issuance upon exercise of outstanding Series D Warrants. Section 3.2(b) of the Company Disclosure Schedule sets forth the name of each holder of Company Options, Common Warrants and Preferred Warrants as of the date of this Agreement, as well as the number of Company Options, Common Warrants or Preferred Warrants held by each such holder, the number of shares of Company Stock for which each such Company Option, Common Warrant or Preferred Warrant is exercisable or convertible into (both vested and unvested in the case of Company Options), and the price per share of Company Stock for which each such Company Option, Common Warrant or Preferred Warrant is exercisable or convertible into (without taking into account whether or not such Company Option, Common Warrant or Preferred Warrant is in fact exercisable or convertible on the date hereof). The Company has previously made available to Buyer true and correct copies of all outstanding Common Warrants, Preferred Warrants and all option agreements governing outstanding Company Options.

Company Options and Company Warrants. As of the date close of this Agreementbusiness on June 24, 2005: (i) 1,025,396 18,765,366 shares of Company Common Stock are reserved for issuance issuable upon the exercise of outstanding options to purchase Company Common Stock under the Company’s Amended and Restated 1998 Stock Plan and the Company’s 1997 Stock Option Plan (the “Company Stock Option Plans”) (such options and any other options to purchase Company Common Stock, whether payable in cash, shares or otherwise, granted under or pursuant to the Company Stock Plan, of which 694,114 shares Option Plans are subject referred to outstanding in this Agreement as “Company Options”), and 13,388,778 such Company Options are vested and exercisable; (ii) 70,000 12,082,587 shares of Company Common Stock are reserved available for issuance upon exercise of outstanding Common Warrants, future grant under the Company Stock Option Plans; (iii) 42,855 2,099,687 shares of Series B Preferred Company Common Stock are reserved for issuance upon exercise of outstanding Series B Warrants, issuable under the Company Purchase Plan; and (iv) 33,689 625,000 shares of Series C Preferred Company Common Stock are reserved for issuance issuable upon the exercise of outstanding Series C Warrants, and (v) 4,807 shares of Series D Preferred Stock are reserved for issuance upon exercise of outstanding Series D Company Warrants. Section 3.2(b2.2(b)(i) of the Company Disclosure Schedule Letter sets forth the name a list of each holder Company Option outstanding as of June 24, 2005 and each Company Options, Common Warrants and Preferred Warrants Warrant outstanding as of the date hereof: (a) the name of this Agreementthe holder of such Company Option or Company Warrant, as well as the number of Company Options, Common Warrants or Preferred Warrants held by each such holder, (b) the number of shares of Company Common Stock subject to such Company Option or Company Warrant, (c) the exercise price of such Company Option or Company Warrant, (d) the date on which such Company Option or Company Warrant was granted or issued, (e) the Company Stock Option Plan under which such Company Option was issued and (f) for which each such Company Option, Common whether such Company Option is held by a Person who is not an employee of the Company or any of its Subsidiaries. The Company has Made Available with respect to each Company Option outstanding as of June 24, 2005 and each Company Warrant or Preferred Warrant is exercisable or convertible into outstanding as of the date hereof, (both vested and unvested in a) the case of Company Options)applicable vesting schedule, if any, and the price per share extent to which such Company Option or Company Warrant is vested and exercisable as of the date hereof and (b) the date on which such Company Option or Company Warrant expires. All shares of Company Common Stock for subject to issuance under the Company Stock Option Plans, the Company Purchase Plans and the Company Warrants, upon issuance on the terms and conditions specified in the instruments pursuant to which each such they are issuable, would be duly authorized, validly issued, fully paid and nonassessable. Except as set forth in Section 2.2(b)(i) of the Company OptionDisclosure Letter, Common Warrant or Preferred Warrant is exercisable or convertible into (without taking into account whether or not such Company Optionsince the close of business on June 24, Common Warrant or Preferred Warrant is in fact exercisable or convertible 2005 to the close of business on the date hereof, the Company has not issued any Company Options other than grants of Company Options as would be permitted under Section 4.1(b)(iv)(C) after the date hereof. Except as set forth in Section 2.2(b)(ii) of the Company Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option or Company Warrant as a result of the Merger (whether alone or upon the occurrence of any additional or subsequent events). The As of the end of the most recent bi-weekly payroll period ending prior to the date hereof, the aggregate amount credited to the accounts of participants in the Company has previously made available Purchase Plan was $83,000 and the aggregate amount credited to Buyer true and correct copies of all such accounts for such bi-weekly payroll period for U.S. payroll was $21,000. There are no outstanding Common Warrantsor authorized stock appreciation, Preferred Warrants and all option agreements governing outstanding Company Optionsphantom stock, profit participation or other similar rights with respect to the Company.

Company Options and Company Warrants. As of the date of this Agreement, Cutoff Time: (i) 1,025,396 3,394,662 shares of Company Common Stock are reserved for issuance pursuant to issuable upon the exercise of Company Options under the Company Stock PlanPlans, the weighted average exercise price of which 694,114 such Company Options is $3.51, and 2,581,243 shares of Company Common Stock underlying such 3,394,662 Company Options are subject to outstanding Company Options, vested and exercisable; (ii) 70,000 1,103,761 shares of Company Common Stock are available for future grant under the Company Stock Plans; (iii) 176,280 shares of Company Common Stock are available for issuance under the Company’s Employee Stock Purchase Plan and any other employee stock purchase plan of the Company (the “Company Purchase Plans”); (iv) no shares of Company Common Stock are issuable pursuant to outstanding options to purchase Company Common Stock (A) which are issued other than pursuant to the Company Stock Plans and (B) other than shares reserved for issuance upon exercise of outstanding Common Warrants, (iii) 42,855 shares of Series B Preferred Stock are reserved for issuance upon exercise of outstanding Series B Warrants, (iv) 33,689 shares of Series C Preferred Stock are reserved for issuance upon exercise of outstanding Series C Warrants, under the Company Purchase Plans; and (v) 4,807 100,000 shares of Series D Preferred Company Common Stock are reserved for issuance issuable upon the exercise of outstanding Series D Company Warrants. Section 3.2(b3.2(c) of the Company Disclosure Schedule Letter sets forth a list, as of the Cutoff Time, of each outstanding Company Option and Company Warrant: (a) the particular Company Stock Plan (if any) pursuant to which any such Company Option was granted; (b) the name of each the holder of such Company Options, Common Warrants and Preferred Warrants as of the date of this Agreement, as well as the number of Option or Company Options, Common Warrants or Preferred Warrants held by each such holder, Warrant; (c) the number of shares of Company Common Stock for which each subject to such Company Option, Common Option or Company Warrant; (d) the exercise price of such Company Option or Company Warrant; (e) the date on which such Company Option or Company Warrant was granted or Preferred issued; (f) the extent to which such Company Option or Company Warrant is exercisable or convertible into (both vested and unvested exercisable as of the Cutoff Time; and (g) the date on which such Company Option or Company Warrant expires. All shares of Company Common Stock subject to issuance under the Company Stock Plans, the Company Purchase Plans and the Company Warrants, upon issuance on the terms and conditions specified in the case instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. Except as expressly required or provided by this Agreement, or as otherwise set forth in Section 3.2(c) of the Company Options)Disclosure Letter, there are no commitments or agreements obligating the Company to accelerate the vesting of any Company Option as a result of the Merger. There are no ongoing offering periods, and therefore no purchase rights outstanding, under the price per share of Company Stock for which each such Company OptionPurchase Plans. There are no outstanding or authorized stock appreciation, Common Warrant phantom stock, or Preferred Warrant is exercisable other similar equity awards or convertible into (without taking into account whether or not such Company Option, Common Warrant or Preferred Warrant is in fact exercisable or convertible on rights with respect to the Company. In the period from the Cutoff Time to the date hereof). The , the Company has previously made available to Buyer true and correct copies of all outstanding Common not granted any Company Options or issued any Company Warrants, Preferred Warrants and all option agreements governing outstanding Company Options.

Company Options and Company Warrants. As of the date of this Agreement, (ihereof:(A) 1,025,396 3,998,334 shares of Company Common Stock are reserved for issuance issuable upon the exercise of Company Options issued pursuant to the Company Stock PlanPlans, of which 694,114 shares are subject to outstanding Company Options, (ii) 70,000 and 3,095,153 shares of Common Stock underlying such Company Options are vested and exercisable; (B) 2,412,923 shares of Common Stock are reserved available for issuance future grant under the Company Stock Plans; (C) no shares of Common Stock are issuable pursuant to outstanding options to purchase Common Stock which are issued other than pursuant to the Company Stock Plans and (D) no shares of Common Stock are issuable upon the exercise of outstanding Common Warrants, (iii) 42,855 shares of Series B Preferred Stock are reserved for issuance upon exercise of outstanding Series B Warrants, (iv) 33,689 shares of Series C Preferred Stock are reserved for issuance upon exercise of outstanding Series C Warrants, and (v) 4,807 shares of Series D Preferred Stock are reserved for issuance upon exercise of outstanding Series D Company Warrants. Section 3.2(b3(d)(ii) of the Company Disclosure Schedule sets forth a list of each outstanding Company Option and Company Warrant: (1) the particular Company Stock Plan (if any) pursuant to which any such Company Option or Company Warrant was granted; (2) the name of each the holder of such Company Options, Common Warrants and Preferred Warrants as of the date of this Agreement, as well as the number of Option or Company Options, Common Warrants or Preferred Warrants held by each such holder, Warrant; (3) the number of shares of Company Common Stock for which each subject to such Company Option, Common Option or Company Warrant; (4) the exercise price of such Company Option or Company Warrant; (5) the date on which such Company Option or Company Warrant was granted or Preferred issued; and (6) the extent to which such Company Option or Company Warrant is exercisable or convertible into (both vested and unvested in the case exercisable as of Company Options), and the price per share of Company Stock for which each such Company Option, Common Warrant or Preferred Warrant is exercisable or convertible into (without taking into account whether or not such Company Option, Common Warrant or Preferred Warrant is in fact exercisable or convertible on the date hereof). The All shares of Common Stock subject to issuance under the outstanding Company has previously made available to Buyer true Options and correct copies of all outstanding Common the Company Warrants, Preferred Warrants upon issuance on the terms and all option agreements governing outstanding Company Optionsconditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable.

Company Options and Company Warrants. As of the date hereof: (A) 84,937,607 shares of this AgreementCommon Stock are issuable upon the exercise of Company Options issued pursuant to the Company Stock Plans, and 37,306,520 shares of Common Stock underlying such Company Options are vested and exercisable; (iB) 1,025,396 16,809,559 shares of Common Stock are available for future grant under the Company Stock Plans; (C) no shares of Common Stock are issuable pursuant to outstanding options to purchase Common Stock which are issued other than pursuant to the Company Stock Plans; (D) 1,308,227 shares of Company Common Stock are reserved for issuance pursuant to issuable upon the Company Stock Plan, of which 694,114 shares are subject to outstanding Company Options, (ii) 70,000 shares exercise of Company Common Stock are reserved for issuance upon exercise of outstanding Common Warrants, ; and (iiiE) 42,855 10,536,665 shares of Series B B-1 Preferred Stock are reserved for issuance issuable upon the exercise of outstanding Series B Warrants, (iv) 33,689 shares of Series C Preferred Stock are reserved for issuance upon exercise of outstanding Series C Warrants, and (v) 4,807 shares of Series D Preferred Stock are reserved for issuance upon exercise of outstanding Series D Company Warrants. Section 3.2(b3(d)(ii) of the Company Disclosure Schedule sets forth for each outstanding Company Option and Company Warrant: (1) the name of each the holder of such Company Options, Common Warrants and Preferred Warrants as of the date of this Agreement, as well as the number of Option or Company Options, Common Warrants or Preferred Warrants held by each such holder, Warrant; (2) the number of shares of Company Common Stock for which each or Series B-1 Preferred Stock, as applicable, subject to such Company Option, Common Option or Company Warrant; (3) the exercise price of such Company Option or Company Warrant; (4) the date on which such Company Option or Company Warrant was granted or Preferred issued; (5) the extent to which such Company Option or Company Warrant is exercisable or convertible into (both vested and unvested in the case exercisable as of Company Options), and the price per share of Company Stock for which each such Company Option, Common Warrant or Preferred Warrant is exercisable or convertible into (without taking into account whether or not such Company Option, Common Warrant or Preferred Warrant is in fact exercisable or convertible on the date hereof); and (6) the vesting schedule and expiration of such Company Option or Company Warrant. The Each Company has previously Option shown thereon was granted in accordance with the terms of the Company’s 2000 Equity Incentive Plan and applicable law. All shares of Common Stock subject to issuance under the outstanding Company Options and the Company Warrants, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. All Company Warrants made available to Buyer true Parent other than those set forth on Section 3(d)(ii) of the Disclosure Schedule have been terminated and correct copies of all outstanding Common Warrants, Preferred Warrants and all option agreements governing outstanding Company Optionsare no longer outstanding.

Company Options and Company Warrants. As of the date close of this Agreementbusiness on May 6, 2005: (i) 1,025,396 2,232,723 shares of Company Common Stock are reserved for issuance issuable upon the exercise of outstanding options to purchase Company Common Stock under the Company’s 2002 Incentive Stock Option Plan, 2003 Director Option Plan and 2003 Stock Option Plan (collectively, the “Company Stock Option Plans”) (equity or other equity-based awards, whether payable in cash, shares or otherwise granted under or pursuant to the Company Stock Plan, of which 694,114 shares Option Plans are subject referred to outstanding in this Agreement as “Company Options, ”); (ii) 70,000 as of May 5, 2005, 1,341,377 shares of Company Common Stock were available for future grant under the Company Stock Option Plans; (iii) 264,625 shares of Company Common Stock are issuable under the Company Purchase Plans; (iv) no shares of Company Common Stock are issuable pursuant to outstanding options to purchase Company Common Stock (A) which are issued other than pursuant to the Company Stock Option Plans and (B) other than shares reserved for issuance upon exercise of outstanding Common Warrants, (iii) 42,855 shares of Series B Preferred Stock are reserved for issuance upon exercise of outstanding Series B Warrants, (iv) 33,689 shares of Series C Preferred Stock are reserved for issuance upon exercise of outstanding Series C Warrants, under the Company Purchase Plans; and (v) 4,807 5,338,216 shares of Series D Preferred Company Common Stock are reserved for issuance were issuable upon the exercise of outstanding Series D Company Warrants. Section 3.2(b2.2(c) of the Company Disclosure Schedule Letter sets forth a list of each outstanding Company Option and Company Warrant: (a) the particular Company Stock Option Plan (if any) pursuant to which any such Company Option was granted, (b) the name of each the holder of such Company Options, Common Warrants Option or Company Warrant and Preferred Warrants as whether such holder is an employee of the date Company or one of this Agreementits Subsidiaries, as well as the number of Company Options, Common Warrants or Preferred Warrants held by each such holder, (c) the number of shares of Company Common Stock for which each subject to such Company OptionOption or Company Warrant, Common (d) the exercise price of such Company Option or Company Warrant, (e) the date on which such Company Option or Company Warrant was granted, (f) the applicable vesting schedule, if any, and the extent to which such Company Option or Preferred Company Warrant is exercisable or convertible into (both vested and unvested exercisable as of the date hereof, (g) the date on which such Company Option or Company Warrant expires and (h) in the case of Company Options), whether such Company Option is an incentive stock option as defined in Section 422 of the Code and/or is subject to Section 409 of the Code. All shares of Company Common Stock subject to issuance under the Company Stock Option Plans, the Company Purchase Plans and the price per share Company Warrants, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, would be duly authorized, validly issued, fully paid and nonassessable. There are no commitments or agreements of any character to which the Company Stock for which each such is bound obligating the Company Option, Common Warrant to accelerate the vesting of any Company Option as a result of the Merger (whether alone or Preferred Warrant is exercisable upon the occurrence of any additional or convertible into (without taking into account whether or not such Company Option, Common Warrant or Preferred Warrant is in fact exercisable or convertible on subsequent events). As of the end of the most recent bi-weekly payroll period ending prior to the date hereof), the aggregate amount credited to the accounts of participants in the Company Purchase Plans was $3,337.81 and the aggregate amount credited to such accounts for such bi-weekly payroll period was $227.65. The Company has previously made available There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to Buyer true and correct copies of all outstanding Common Warrants, Preferred Warrants and all option agreements governing outstanding Company Optionsthe Company.

Company Options and Company Warrants. As of the date close of this Agreementbusiness on June 24, 2005: (i) 1,025,396 18,765,366 shares of Company Common Stock are reserved for issuance issuable upon the exercise of outstanding options to purchase Company Common Stock under the Company’s Amended and Restated 1998 Stock Plan and the Company’s 1997 Stock Option Plan (the “Company Stock Option Plans”) (such options and any other options to purchase Company Common Stock, whether payable in cash, shares or otherwise, granted under or pursuant to the Company Stock Plan, of which 694,114 shares Option Plans are subject referred to outstanding in this Agreement as “Company Options”), and 13,388,778 such Company Options are vested and exercisable; (ii) 70,000 12,082,587 shares of Company Common Stock are reserved available for issuance upon exercise of outstanding Common Warrants, future grant under the Company Stock Option Plans; (iii) 42,855 2,099,687 shares of Series B Preferred Company Common Stock are reserved for issuance upon exercise of outstanding Series B Warrants, issuable under the Company Purchase Plan; and (iv) 33,689 625,000 shares of Series C Preferred Company Common Stock are reserved for issuance issuable upon the exercise of outstanding Series C Warrants, and (v) 4,807 shares of Series D Preferred Stock are reserved for issuance upon exercise of outstanding Series D Company Warrants. Section 3.2(b2.2(b)(i) of the Company Disclosure Schedule Letter sets forth the name a list of each holder Company Option outstanding as of June 24, 2005 and each Company Options, Common Warrants and Preferred Warrants Warrant outstanding as of the date hereof: (a) the name of this Agreementthe holder of such Company Option or Company Warrant, as well as the number of Company Options, Common Warrants or Preferred Warrants held by each such holder, (b) the number of shares of Company Common Stock subject to such Company Option or Company Warrant, (c) the exercise price of such Company Option or Company Warrant, (d) the date on which such Company Option or Company Warrant was granted or issued, (e) the Company Stock Option Plan under which such Company Option was issued and (f) for which each such Company Option, Common whether such Company Option is held by a Person who is not an employee of the Company or any of its Subsidiaries. The Company has Made Available with respect to each Company Option outstanding as of June 24, 2005 and each Company Warrant or Preferred Warrant is exercisable or convertible into outstanding as of the date hereof, (both vested and unvested in a) the case of Company Options)applicable vesting schedule, if any, and the price per share extent to which such Company Option or Company Warrant is vested and exercisable as of the date hereof and (b) the date on which such Company Option or Company Warrant expires. All shares of Company Common Stock for subject to issuance under the Company Stock Option Plans, the Company Purchase Plans and the Company Warrants, upon issuance on the terms and conditions specified in the instruments pursuant to which each such they are issuable, would be duly authorized, validly issued, fully paid and nonassessable. Except as set forth in Section 2.2(b)(i) of the Company OptionDisclosure Letter, Common Warrant or Preferred Warrant is exercisable or convertible into (without taking into account whether or not such Company Optionsince the close of business on June 24, Common Warrant or Preferred Warrant is in fact exercisable or convertible 2005 to the close of business on the date hereof, the Company has not issued any Company Options other than grants of Company Options as would be permitted under Section 4.1(b)(iv)(C) after the date hereof. Except as set forth in Section 2.2(b)(ii) of the Company Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option or Company Warrant as a result of the Merger (whether alone or upon the occurrence of any additional or subsequent events). The As of the end of the most recent bi- weekly payroll period ending prior to the date hereof, the aggregate amount credited to the accounts of participants in the Company has previously made available Purchase Plan was $83,000 and the aggregate amount credited to Buyer true and correct copies of all such accounts for such bi-weekly payroll period for U.S. payroll was $21,000. There are no outstanding Common Warrantsor authorized stock appreciation, Preferred Warrants and all option agreements governing outstanding Company Optionsphantom stock, profit participation or other similar rights with respect to the Company.