Common use of Capitalization; Voting Rights Clause in Contracts

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist of (a) eighty million (80,000,000) shares of Common Stock, of which six million seven hundred sixty-five thousand two (6,765,002) shares are issued and outstanding, and (b) twenty-five million (25,000,000) shares of Preferred Stock, of which one million seven hundred fifty-one thousand nine hundred eighty-five (1,751,985) shares are designated Series A Preferred Stock, of which one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, and of which five million seven hundred fourteen thousand two hundred eighty-five (5,714,285) shares are designated Series C Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Certificate. The Conversion Shares have been duly and validly reserved for issuance. As of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series C Conversion Price, as defined in the Certificate. Except as set forth on the Schedule of Exceptions and except as may be granted pursuant to this Agreement or the Investors' Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares have been duly authorized and, when issued in compliance with the provisions of this Agreement and the Certificate, will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDED, HOWEVER, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time transfer is proposed.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist of (a) eighty thirty-four million (80,000,00034,000,000) shares of Common Stock, of which six three million seven one hundred sixtythirty-five thousand two hundred ninety-six (6,765,0023,135,296) shares are issued and outstanding, and (b) twenty-six million seven hundred eighty-five million thousand four hundred (25,000,00026,785,400) shares of Preferred Stock, of which one twelve million seven hundred fifty-one thousand nine six hundred eighty-five eight thousand one hundred seventy-eight (1,751,98512,688,178) shares are designated Series A Preferred Stock, of which one twelve million seven five hundred fiftythirty-one three thousand nine hundred eighty five (1,751,985) are issued and outstanding, of which thirteen million six hundred fifteen thousand three hundred twentyseventy-two six (13,615,322) shares are designated Series B Preferred Stock, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,32212,533,676) are issued and outstanding, and of which five fourteen million ninety-seven hundred fourteen thousand two hundred eightytwenty-five two (5,714,28514,097,222) shares are designated Series C B Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Certificate. The Conversion Shares have been duly and validly reserved for issuance. As of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series C Conversion Price, as defined in the Certificate. Except as set forth on the Schedule of Exceptions and except as may be granted pursuant to this Agreement or the Investors' Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares have been duly authorized and, when issued in compliance with the provisions of this Agreement and the Certificate, will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDED, HOWEVER, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time transfer is proposed.Shares

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist of Forty Million (a) eighty million (80,000,00040,000,000) shares of Common StockStock (par value $.001 per share), Eight Million Four Hundred Twenty-Six Thousand Forty-Two (8,426,042) shares of which six million seven hundred sixty-five thousand two (6,765,002) shares are issued and outstanding, and Eighteen Million (b) twenty-five million (25,000,00018,000,000) shares of Preferred StockStock (par value $.001 per share), Five Million Two Hundred Thousand (5,200,000) of which one million seven hundred fifty-one thousand nine hundred eighty-five (1,751,985) shares are designated Series A Preferred Stock, Five Million (5,000,000) of which one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, Four Million Four Hundred Thousand (4,400,000) of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, Three Million Six Hundred Sixty Thousand Nine Hundred Fourteen (3,660,914) of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, and Four Million (4,000,000) of which five million seven hundred fourteen thousand two hundred eighty-five (5,714,285) shares are designated Series C Preferred Stock, none Two Million Five Hundred Thirteen Thousand Five Hundred Thirteen (2,513,513) of which are issued and outstanding, Two Million Five Hundred Thousand (2,500,000) of which are designated Series D Preferred Stock, One Million Three Hundred Fifty-Eight Thousand Six Hundred Ninety-Five (1,358,695) of which are issued and outstanding, Three Hundred Thousand (300,000) of which are designated Series E Preferred Stock, Two Hundred Seventy Thousand Two Hundred Seventy (270,270) of which are issued and outstanding, Five Hundred Thousand (500,000) of which are designated Series F Preferred Stock, Four Hundred Five Thousand Four Hundred Five (405,405) of which are issued and outstanding, and One Million One Hundred Thousand (1,100,000) of which are designated Series G Preferred Stock, none of which are outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (ia) have been duly authorized and validly issued, (iib) are fully paid and nonassessable nonassessable, and (iiic) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Certificate. Each series of Preferred Stock is initially convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. As of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series C Conversion Price, as defined in the Certificate. Except as set forth on the Schedule of Exceptions and except as may be granted pursuant to this Agreement or the Investors' Rights AgreementRelated Agreements, stock awards and options to purchase shares of the Company's Common Stock granted pursuant to the Company's 1997 Equity Incentive Plan and 1999 Equity Incentive Plan, and outstanding warrants to purchase 81,522 shares of the Company's Common Stock, 52,083 shares of the Company's Series A Preferred Stock, 60,813 shares of the Company's Series B Preferred Stock, 324,325 shares of the Company's Series C Preferred Stock and 543,478 shares of the Company's Series D Preferred Stock, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares Company has reserved 6,500,000 shares of Common Stock for issuance to employees, officers or directors of, or consultants or advisors to the Company pursuant to the Company's 1997 Equity Incentive Plan and the Conversion Shares have been duly authorized and1999 Equity Incentive Plan, when of which 2,067,288 remain available for future grant. When issued in compliance with the provisions of this Agreement and the Restated Certificate, the Shares and the Conversion Shares will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws)issued, fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDEDprovided, HOWEVERhowever, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. Except as contained in the Related Agreements and the Restated Charter, or as set forth in the Schedule of Exceptions, the Company is not aware of any written agreement or other understandings relating to the voting of its securities.

Capitalization; Voting Rights. (a) 1 The authorized capital stock of the Company, immediately prior to the ClosingInitial Closing after giving effect to the Restated Charter, will consist of (a) eighty million (80,000,000) [80,932,230] shares of Common Stock, par value $0.001 per share, 6,934,807 shares of which six million seven hundred sixty-five thousand two (6,765,002) shares are issued and outstandingoutstanding and 9,677,915 shares of which are reserved for future issuance to employees pursuant to the Company’s 1998 Stock Option Plan, 2002 Stock Incentive Plan, 2002 California Stock Incentive Plan and 2005 Stock Incentive Plan (bcollectively, the “Stock Incentive Plans”) twenty-five million (25,000,000) and [63,843,741] shares of Preferred Stock, par value $0.001 per share, 8,904,567 of which one million seven hundred fifty-one thousand nine hundred eighty-five (1,751,985) shares are designated Series A Preferred Stock, all of which one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, outstanding 7,419,355 of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, all of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, 6,401,523 of which are designated Series C Stock, all of which are issued and outstanding, 12,618,296 of which are designated as Series D Stock, all of which are issued and outstanding, 20,500,000 of which are designated as Series E Stock, 19,633,531 of which are issued and outstanding, 8,000,000 of which are designated as Series F Stock, 8,000,000 of which are issued and outstanding, and [•] of which five million seven hundred fourteen thousand two hundred eighty-five (5,714,285) shares are designated as Series C Preferred G Stock, none of which are issued and outstandingoutstanding (collectively, the “Preferred Stock”). All issued and outstanding shares of the Company's Common Stock and Preferred Stock ’s capital stock (ia) have been duly authorized and validly issued, (iib) are fully paid and nonassessable non-assessable, and (iiic) were issued offered, issued, sold and delivered in compliance with all applicable federal and state and federal laws concerning the issuance of securitiessecurities laws. The rights, preferences, privileges and restrictions of the Shares are as stated in the CertificateRestated Charter. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. As of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series C Conversion Price, as defined in the Certificate. Except as set forth on the Schedule of Exceptions and except as may be granted pursuant to this Agreement or the Investors' Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares have been duly authorized and, when issued in compliance with the provisions of this Agreement and the Certificate, will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDED, HOWEVER, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time transfer is proposed.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist of (a) eighty of: twelve million (80,000,00012,000,000) shares of Common Stock, seven hundred thirty thousand nine hundred eighty-eight (730,988) shares of which six million seven hundred sixty-five thousand two (6,765,002) shares are issued and outstanding, outstanding and (b) nine hundred thirty-three thousand twenty-five seven (933,027) shares of which are reserved for future issuance to employees and outside directors upon the exercise of options to purchase the Company's Common Stock; and nine million (25,000,0009,000,000) shares of Preferred Stock, of which one two million seven hundred fifty-one seven thousand nine four hundred eighty-five three (1,751,9852,707,403) shares are designated Series A Preferred Stock, of which two million six hundred eighty-five thousand one million seven hundred fiftyeighty-one thousand nine hundred eighty five (1,751,9852,685,181) shares are issued and outstanding, of which thirteen million six five hundred fifteen seventy-nine thousand three four hundred twenty-two seven (13,615,322579,407) shares are designated Series B Preferred Stock, of which thirteen million six five hundred fifteen seventy-nine thousand three four hundred twenty-two seven (13,615,322579,407) shares are issued and outstanding, outstanding and of which five million seven hundred fourteen thousand two hundred eighty-five (5,714,2855,000,000) shares are designated Series C Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock, Series A Preferred Stock and Series B Preferred Stock (i) have been duly authorized and validly issuedissued to the persons listed on Exhibit F hereto, (ii) are fully paid and nonassessable nonassessable, and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the CertificateRestated Articles. The Conversion Shares have been duly and validly reserved for issuance. As of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series C Conversion Price, as defined in the Certificate. Except Other than as set forth on the Schedule of Exceptions Exhibit F, and except (i) as may be granted pursuant to this Agreement or the Investors' Rights Agreement and the Co-Sale Agreement, (ii) a warrant for the purchase of an aggregate of 22,222 shares of Series A Preferred Stock and (iii) a warrant for the purchase of an aggregate of 21,357 shares of Common Stock, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares have been duly authorized and, when When issued in compliance with the provisions of this Agreement and the CertificateRestated Articles, the Shares and the Conversion Shares will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws)issued, fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDEDprovided, HOWEVERhowever, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the First Closing, will consist of Twenty-Seven Million (a) eighty million (80,000,00027,000,000) shares of Common Stock, Four Million Three Hundred Seventy-Two Thousand Two Hundred Forty-Five (4,372,245) shares of which six million seven hundred sixtyare issued and outstanding and Two Million Two Hundred Eighty Thousand (2,280,000) shares of which are reserved for future issuance to employees, of which One Million One Hundred Thousand Five Hundred Thirty-five thousand two Five (6,765,0021,100,535) shares are subject to options or purchase rights which have been issued to the Company's employees, consultants and outstanding, other service providers and One Million One Hundred Seventy-Nine Thousand Four Hundred Sixty-Five Thousand (b1,179,465) twenty-five million are reserved for options which have not been granted as of the date hereof and Twenty Million (25,000,00020,000,000) shares of Preferred Stock, Six Million Seventy-Three Thousand (6,073,000) of which one million seven hundred fifty-one thousand nine hundred eighty-five (1,751,985) shares are designated Series A Preferred Stock, Six Million Thirty-Five Thousand (6,035,000) shares of which one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, Eight Hundred Ten Thousand (810,000) of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, none of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, and Thirteen Million One Hundred Thousand (13,100,000) of which five million seven hundred fourteen thousand two hundred eighty-five (5,714,285) shares are designated Series C Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (i) have been duly authorized and validly issuedissued to the persons listed on Exhibit E hereto, (ii) are fully paid and nonassessable nonassessable, and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Certificate. The Conversion Shares have been duly and validly reserved for issuance. As of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series C Conversion Price, as defined in the Certificate. Except Other than as set forth on the Schedule of Exceptions Exhibit E, and except as may be granted pursuant to this the Investor Rights Agreement or and the Investors' Rights Shareholders Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares have been duly authorized and, when When issued in compliance with the provisions of this Agreement and the Certificate, the Shares and the Conversion Shares will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws)issued, fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDEDprovided, HOWEVERhowever, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed.

Capitalization; Voting Rights. (a) The As of the date hereof, the authorized capital stock of the CompanyCompany consists of 208,403,275 shares, immediately prior to the Closing, will consist of (a) eighty million (80,000,000) which 150,000,000 are shares of Common Stock, par value $0.001 per share, 8,590,855 shares of which six million seven hundred sixty-five thousand two (6,765,002) shares are issued and outstanding, outstanding and 12,673,992 shares of which are reserved for future issuance to employees pursuant to the Stock Option Plans (bas hereinafter defined) twenty-five million (25,000,000) and 58,403,275 are shares of Preferred Stock, par value $0.001 per share; 8,750,000 of which one million seven hundred fifty-one thousand nine hundred eighty-five (1,751,985) shares are designated Series A Preferred Stock, of which one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, 8,572,039 of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, and ; 8,500,000 shares of which five million seven hundred fourteen thousand two hundred eighty-five (5,714,285) shares are designated Series C Preferred Stock, 6,270,527 of which are issued and outstanding; 3,00,000 of which are designated Series D Preferred Stock, of which 2,868,538 are issued and outstanding; 1,904,898 of which are designated Series E Preferred Stock, none of which are issued and outstanding; and 30,000,000 of which are designated Series F Preferred Stock, 23,596,492 of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock capital stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and nonassessable, (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares Preferred Stock are as stated in the Certificate. The Conversion Shares have been duly and validly reserved for issuance. As Company's Restated Certificate of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series C Conversion PriceIncorporation, as defined amended, in the Certificate. Except as set forth effect on the Schedule of Exceptions and except as may be granted pursuant to this Agreement or date hereof (the Investors' Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal"CURRENT CERTIFICATE"), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares have been duly authorized and, when issued in compliance with the provisions of this Agreement and the Certificate, will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDED, HOWEVER, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time transfer is proposed.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist of (a) eighty million (80,000,000) shares of Common Stock, of which six twenty-two million seven hundred sixtysixteen thousand one hundred fifty-five thousand two four (6,765,00222,716,154) shares of which are issued and outstanding, eleven million nine hundred forty six thousand seven hundred forty five (11,946,745) shares of which are reserved for issuance to employees pursuant to the Company's 1996 Equity Incentive Plan of which five hundred seventy four thousand seven hundred thirty three (574,733) shares have been exercised pursuant to options (and are reflected in the outstanding Common Stock referenced above) eight million fifty six thousand two hundred twenty seven (b8,056,227) twenty-shares are reserved for outstanding options and three million three hundred fifteen thousand seven hundred eighty five (3,315,785) shares are reserved for future issuance of options, seventy eight thousand (78,000) shares of which are reserved for the exercise of certain warrants to purchase Common Stock of the Company and seven million four hundred nineteen thousand seven hundred sixty nine (7,419,769) shares of which are reserved for issuance upon conversion of the Series A Preferred Stock, and twenty million (25,000,00020,000,000) shares of Preferred Stock, seven million five hundred thousand (7,500,000) of which one million seven hundred fifty-one thousand nine hundred eighty-five (1,751,985) shares are designated Series A Preferred Stock, seven million four hundred nineteen thousand seven hundred sixty nine (7,419,769) shares of which one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, and twelve million five hundred thousand (12,500,000) of which five million seven hundred fourteen thousand two hundred eighty-five (5,714,285) shares are designated Series C B Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Series A Preferred Stock (ia) have been duly authorized and validly issued, issued (iib) are fully paid and nonassessable nonassessable, and (iiic) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the CertificateRestated Charter. Subject to adjustment as set forth in the Restated Charter, each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. As of Other than the Closingshares reserved for issuance under the Company's 1996 Equity Incentive Plan, there has been no action taken by the Company which would have required an adjustment to the Series C Conversion Price, as defined in the Certificate. Except as set forth on the Schedule of Exceptions and except as may be granted pursuant to this Agreement or the Investors' Rights AgreementRelated Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the issuance by the Company or purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares have been duly authorized and, when When issued in compliance with the provisions of this Agreement and the CertificateRestated Charter, the Shares and the Conversion Shares will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws)issued, fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens liens, encumbrances or encumbrancespre-emptive rights; PROVIDEDprovided, HOWEVERhowever, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed.

Capitalization; Voting Rights. (a) The As of the date hereof and before giving effect to the transactions contemplated by this Agreement, the authorized capital stock of the CompanyCompany consists of 950,000,000 shares, immediately prior to the Closing, will consist of (a) eighty million (80,000,000) which 500,000,000 are shares of Common Stock, par value $0.001 per share, 859,202 shares of which six million seven hundred sixty-five thousand two (6,765,002) shares are issued and outstanding, outstanding and 1,267,399 shares of which are reserved for future issuance to employees pursuant to the Stock Option Plans (bas hereinafter defined) twenty-five million (25,000,000) and 450,000,000 are shares of Preferred Stock, par value $0.001 per share; 8,750,000 shares of which one million seven hundred fifty-one thousand nine hundred eighty-five (1,751,985) shares are designated Series A Preferred Stock, of which one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, 8,572,039 of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, and ; 8,500,000 shares of which five million seven hundred fourteen thousand two hundred eighty-five (5,714,285) shares are designated Series C Preferred Stock, 6,270,527 of which are issued and outstanding; 3,000,000 of which are designated Series D Preferred Stock, of which 2,868,538 are issued and outstanding; 1,904,898 of which are designated Series E Preferred Stock, none of which are issued and outstanding; 30,000,000 of which are designated Series F Preferred Stock, 23,596,492 of which are issued and outstanding; 329,000,000 of which are designated Series G Preferred Stock, of which 214,285,715 are issued and outstanding; 6,579,000 shares of which are designated Series H Preferred Stock, none of which are issued and outstanding; and 2,223,000 shares of which are designated Series I Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock capital stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and nonassessable, (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares Preferred Stock are as stated in the Certificate. The Conversion Shares have been duly and validly reserved for issuance. As of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series C Conversion Price, as defined in the Certificate. Except as set forth on the Schedule of Exceptions and except as may be granted pursuant to this Agreement or the Investors' Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares have been duly authorized and, when issued in compliance with the provisions of this Agreement and the Certificate, will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDED, HOWEVER, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time transfer is proposed.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist of (a) eighty fifty million (80,000,00050,000,000) shares of Voting Common StockStock (par value $.001 per share), two million six hundred eight thousand three hundred ninety (2,608,390) shares of which six million seven hundred sixty-five thousand two (6,765,002) shares are issued and outstandingoutstanding and one million nine hundred fifty four thousand one hundred twenty (1,954,120) shares of which remain reserved for future issuance to employees, officers, directors and consultants pursuant to the Company's 1999 Equity Incentive Plan (b) twenty-after issuance of the 100,000 shares of Voting Common Stock thereunder as described below), twenty five million (25,000,000) shares of Preferred Non-Voting Common Stock, none of which one are issued and outstanding, and thirty two million seven six hundred fifty-one thousand nine hundred eighty-five (1,751,98532,600,000) shares of Preferred Stock (par value $.001 per share), eight million six hundred thousand (8,600,000) of which are designated Series A Preferred Stock, of which one seven million seven nine hundred fifty-one forty two thousand nine hundred eighty five seventy (1,751,9857,942,970) of which are issued and outstanding, twelve million (12,000,000) of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B B-1 Voting Preferred Stock, none of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, and twelve million (12,000,000) of which five million seven hundred fourteen thousand two hundred eighty-five (5,714,285) shares are designated Series C B-2 Non-Voting Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (ia) have been duly authorized and validly issued, (iib) are fully paid and nonassessable nonassessable, and (iiic) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Certificate. Each series of Preferred Stock is convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. As Other than the 2,054,120 shares initially reserved for issuance under the Company's 1999 Equity Incentive Plan (of which options for 240,000 shares of Voting Common Stock have been granted, and of such options granted, 100,000 shares of Voting Common Stock of which have previously been issued upon exercise thereof), the Closing, there has been no action taken option to purchase up to eighty seven thousand seven hundred nineteen (87,719) shares of Series A Preferred Stock granted to Kevix Xxxxxxxx xxxsuant to that certain Key Employee Agreement by and between the Company which would have required an adjustment to the Series C Conversion Priceand Kevix Xxxxxxxx xxxed as of February 10, 1999, as defined amended, and the warrants to purchase in the Certificate. Except aggregate 200,000 shares of Series A Preferred Stock pursuant to that certain Note and Warrant Purchase Agreement, dated as set forth on of April 30, 1999, by and among the Schedule of Exceptions Company and the Purchasers listed therein (which will expire at the First Closing), and except as may be granted pursuant to this Agreement or and the Investors' Investor Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any Subsidiary of any of its securities. The Following the acquisition of the Shares and the Conversion Shares have been duly authorized and, when issued in compliance with the provisions of this Agreement and the Certificate, will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable, subject to no preemptive rightsas provided herein, and will be free assuming conversion of any liens or encumbrances; PROVIDEDall outstanding Series A Preferred Stock and Series B Preferred Stock, HOWEVER, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time transfer is proposed.Shares

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist of thirty seven million, seven hundred ninety one thousand three hundred thirty two (a37,791,332) eighty shares, twenty one million three hundred fifty eight thousand five hundred forty six (80,000,00021,358,546) shares of which shall be Common Stock (the "Common Stock, ") and sixteen million four hundred thirty two thousand seven hundred eighty six (16,432,786) shares of which shall be Preferred Stock (the "Preferred Stock"). Of the Preferred Stock, six million seven hundred sixty-thousand (6,700,000) shares are hereby designated "Series A Preferred Stock" (the "Series A Preferred"), nine million thirty two thousand seven hundred eighty six (9,032,786) shares are hereby designated "Series B Preferred Stock" (the "Series B Preferred"), and five hundred thousand (500,000) shares are hereby designated "Series S-1 Preferred Stock" (the "Series S-1 Preferred"). Of the Common Stock, three million four hundred seventy two thousand nine hundred (6,765,0023,472,900) shares are issued and outstanding, and of the six million seven hundred thousand (b) twenty-five million (25,000,0006,700,000) shares of Preferred Stock, of which one million seven hundred fifty-one thousand nine hundred eighty-five (1,751,985) shares are designated Series A Preferred Stock, of which one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) all are issued and outstanding, and of which five the nine million thirty two thousand seven hundred fourteen thousand two hundred eighty-five eighty six (5,714,2859,032,786) shares are designated of Series C B Preferred Stock, none of which all are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable nonassessable, and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the CertificateAmended and Restated Articles. The Conversion Shares have been duly and validly reserved for issuance. As Other than options to acquire one million five hundred sixty three thousand, six hundred thirty (1,563,630) shares of Common Stock held by officers, employees and consultants of the ClosingCompany, there has been no action taken by and First Amended Investor Rights Agreement between the Company which would have required an adjustment to Company, certain holders of its Common Stock, and the holders of its Series C Conversion Price, as defined in the Certificate. Except as set forth on the Schedule of Exceptions A Preferred Stock and except as may be granted pursuant to this Agreement or the Investors' Rights AgreementSeries B Preferred Stock, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares have been duly authorized and, when When issued in compliance with the provisions of this Agreement and the CertificateAmended and Restated Articles, the Shares and the Conversion Shares will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws)issued, fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDEDprovided, HOWEVERhowever, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. Except as may be set forth in the Amended and Restated Articles, the Company has no obligation to repurchase any of its stock.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist of (a) eighty million (80,000,000) shares of Common Stock, of which six million seven hundred sixtyninety-five seven thousand two eight hundred fourteen (6,765,0026,797,814) shares are issued and outstanding, and (b) twenty-five thirty million (25,000,00030,000,000) shares of Preferred Stock, of which one million seven hundred fifty-one thousand nine hundred eighty-five (1,751,985) shares are designated Series A Preferred Stock, of which one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, and of which five four million seven nine hundred fourteen thirty-two thousand two three hundred eighty-five eight (5,714,2854,932,308) shares are designated Series C Preferred Stock, none of which four million nine hundred thirty-two thousand three hundred eight (4,932,308) are issued and outstanding, and of which five million (5,000,000) shares are designated Series D Preferred Stock, of which one million seven hundred eighty-five thousand seven hundred fourteen (1,785,714) are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Certificate. The Conversion Shares have been duly and validly reserved for issuance. As of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series C D Conversion Price, as defined in the Certificate. Except as set forth on the Schedule of Exceptions and except as may be granted pursuant to this Agreement or the Investors' Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares have been duly authorized and, when issued in compliance with the provisions of this Agreement and the Certificate, will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDED, HOWEVER, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time transfer is proposed.

Capitalization; Voting Rights. (a) The authorized capital stock of the Company, immediately prior to the Closing, will consist of (a) eighty million (80,000,000) shares of Common Stock, of which six million seven hundred sixtyninety-five seven thousand two eight hundred fourteen (6,765,0026,797,814) shares are issued and outstanding, and (b) twenty-five thirty million (25,000,00030,000,000) shares of Preferred Stock, of which one million seven hundred fifty-one thousand nine hundred eighty-five (1,751,985) shares are designated Series A Preferred Stock, of which one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, and of which five four million seven nine hundred fourteen thirty-two thousand two three hundred eighty-five eight (5,714,2854,932,308) shares are designated Series C Preferred Stock, of which four million nine hundred thirty-two thousand three hundred eight (4,932,308) are issued and outstanding, and of which five million (5,000,000) shares are designated Series D Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Certificate. The Conversion Shares have been duly and validly reserved for issuance. As of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series C D Conversion Price, as defined in the Certificate. Except as set forth on the Schedule of Exceptions and except as may be granted pursuant to this Agreement or the Investors' Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares have been duly authorized and, when issued in compliance with the provisions of this Agreement and the Certificate, will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDED, HOWEVER, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time transfer is proposed.

Capitalization; Voting Rights. (a) The As of the date hereof and before giving effect to the transactions contemplated by this Agreement, the authorized capital stock of the CompanyCompany consists of 950,000,000 shares, immediately prior to the Closing, will consist of (a) eighty million (80,000,000) which 500,000,000 are shares of Common Stock, par value $0.001 per share, 859,202 shares of which six million seven hundred sixty-five thousand two (6,765,002) shares are issued and outstanding, outstanding and 1,267,399 shares of which are reserved for future issuance to employees pursuant to the Stock Option Plans (bas hereinafter defined) twenty-five million (25,000,000) and 450,000,000 are shares of Preferred Stock, par value $0.001 per share; 8,750,000 shares of which one million seven hundred fifty-one thousand nine hundred eighty-five (1,751,985) shares are designated Series A Preferred Stock, of which one million seven hundred fifty-one thousand nine hundred eighty five (1,751,985) are issued and outstanding, of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) shares are designated Series B Preferred Stock, 7,881,248 of which thirteen million six hundred fifteen thousand three hundred twenty-two (13,615,322) are issued and outstanding, and ; 8,500,000 shares of which five million seven hundred fourteen thousand two hundred eighty-five (5,714,285) shares are designated Series C Preferred Stock, 6,270,527 of which are issued and outstanding; 3,000,000 of which are designated Series D Preferred Stock, of which 2,374,436 are issued and outstanding; 1,904,898 of which are designated Series E Preferred Stock, none of which are issued and outstanding; 30,000,000 of which are designated Series F Preferred Stock, 23,596,492 of which are issued and outstanding; 329,000,000 of which are designated Series G Preferred Stock, of which 223,638,432 are issued and outstanding; 6,579,000 shares of which are designated Series H Preferred Stock, 690,791 of which are issued and outstanding; and 2,223,000 shares of which are designated Series I Preferred Stock, 494,102 of which are issued and outstanding. All issued and outstanding shares of the Company's Common Stock and Preferred Stock capital stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and nonassessable, (iii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares Preferred Stock are as stated in the Certificate. The Conversion Shares have been duly and validly reserved for issuance. As of the Closing, there has been no action taken by the Company which would have required an adjustment to the Series C Conversion Price, as defined in the Certificate. Except as set forth on the Schedule of Exceptions and except as may be granted pursuant to this Agreement or the Investors' Rights Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Shares and the Conversion Shares have been duly authorized and, when issued in compliance with the provisions of this Agreement and the Certificate, will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable, subject to no preemptive rights, and will be free of any liens or encumbrances; PROVIDED, HOWEVER, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time transfer is proposed.