Common use of Capitalization, Etc Clause in Contracts

Capitalization, Etc. (a) The authorized capital stock of the Company consists of 30,000,000 Company Shares and 200,000 shares of preferred stock (“Preferred Shares”). As of July 30, 2008: (i) 16,580,886 Company Shares were issued and 16,579,886 Company shares were outstanding; (ii) no Preferred Shares were outstanding; (iii) 3,043,646 Company Shares were issuable upon exercise of Company Warrants that were issued and outstanding; (iii)(A) 1,613,535 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 2007 Equity Incentive Plan and (B) 600,666 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 954,545 Company Shares were issuable upon conversion of the Company Debentures. As of July 30, 2008, 1,185,694 Company Shares were reserved for future issuance pursuant to the Company’s 2007 Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent copies of each of (A) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company that are outstanding as of the date of this Agreement, and (B) the forms of all stock option agreements and restricted stock award agreements evidencing such options and stock awards. (b) Except for options, rights, securities and plans referred to in Section 3.3(a), there is no: (i) outstanding option or right to acquire from the Company any shares of the capital stock of the Company; or (ii) outstanding security of the Company that is convertible into or exchangeable for any Company Shares. (c) There are no outstanding (i) securities of any of the Company’s Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any of the Company’s Subsidiaries to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities.

Capitalization, Etc. (a) The authorized capital stock of the Company Parent consists of 30,000,000 Company Shares and 200,000 of: (a) 150,000,000 shares of preferred stock Parent Common Stock, of which 77,637,647 shares (“Preferred Shares”). As excluding shares of July 30Parent Common Stock held in treasury) were outstanding as of October 15, 2008: (i) 16,580,886 Company Shares were issued and 16,579,886 Company shares were outstanding; (ii) no Preferred Shares were outstanding; (iii) 3,043,646 Company Shares were issuable upon exercise of Company Warrants that were issued and outstanding; (iii)(A) 1,613,535 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 2007 Equity Incentive Plan and (B) 600,666 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended1996; and (ivb) 954,545 Company Shares were issuable upon conversion 2,000,000 shares of the Company Debentures. As Preferred Stock, $0.01 par value per share, of July 30, 2008, 1,185,694 Company Shares were reserved for future issuance pursuant to the Company’s 2007 Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent copies of each of (A) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company that no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of October 15, 1996: (i) 9,562,052 shares of Parent Common Stock were reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1987 Stock Option Plan, as amended; (ii) 9,374,978 shares of Parent Common Stock were reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1993 Nonstatutory Stock Option Plan; (iii) 123,750 shares of Parent Common Stock were reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1988 Directors Stock Option Plan; (iv) 191,250 shares of Parent Common Stock were reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1993 Directors Stock Option Plan; (v) 315,000 shares of Parent Common Stock were reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1995 Directors Stock Option Plan; (vi) 128,028 shares of Parent Common Stock were reserved for future issuance pursuant to stock options granted and outstanding other than under the stock option plans referred to in clauses "(i)" through "(v)" of this Section 3.2; (vii) 1,347,149 shares of Parent Common Stock were reserved for future issuance under Parent's 1990 Employee Stock Purchase Plan; (viii) 120,000 shares of Parent Common Stock were reserved for future issuance pursuant to outstanding warrants to purchase shares of Parent Common Stock held by Comdisco Systems, Inc.; and (ix) 2,433,002 shares of Parent Common Stock were reserved for future issuance pursuant to certain outstanding put warrants and call options. All outstanding shares of Parent Common Stock, all outstanding options to purchase shares of Parent Common Stock, and all outstanding shares of capital stock of each subsidiary of Parent have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (Bii) the forms of all stock option agreements and restricted stock award agreements evidencing such options and stock awardsrequirements set forth in applicable Contracts. (b) Except Between October 15, 1996 and the date of this Agreement, there has been: (i) no material change in the number of outstanding shares of Parent Common Stock (other than as a result of the exercise of options referred to in Section 3.2(a)); and (ii) no change in the number of shares of Parent Common Stock reserved for future issuance under the stock option plans or the stock purchase plan referred to in Section 3.2(a). (c) As of the date of this Agreement: (i) there are no outstanding options or rights to purchase shares of Parent Common Stock, other than the options, rightswarrants and other rights referred to in Section 3.2(a), securities certain options granted between October 15, 1996 and the date of this Agreement under the stock option plans referred to in Section 3.3(a)3.2(a) and the rights outstanding under that certain Rights Agreement dated as of February 9, there 1996 between Parent and ▇▇▇▇▇▇ Trust and Savings Bank; and (ii) Parent is no: (i) outstanding option or right not obligated to acquire from the Company issue any shares of the capital stock of the Company; Parent Common Stock or (ii) outstanding security of the Company that is convertible into or exchangeable for any Company Shares. (c) There are no outstanding (i) securities of any of the Company’s Subsidiaries convertible into or exchangeable for rights to acquire shares of capital stock ofParent Common Stock, or other equity or voting interest in, any Subsidiary of than pursuant to (A) the Company, (ii) options, warrantswarrants and rights referred to in Section 3.2(a) and certain options granted between October 15, rights or other commitments or agreements 1996 and the date of this Agreement under the stock option plans referred to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (iSection 3.2(a), (iiB) the rights outstanding under that certain Rights Agreement dated as of February 9, 1996 between Parent and ▇▇▇▇▇▇ Trust and Savings Bank, (C) the terms of this Agreement or any other agreement referred to in this Agreement, and (iii)D) that certain Agreement and Plan of Merger and Reorganization dated as of October 3, together with the capital stock of the Subsidiaries of the Company1996, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any of the Company’s Subsidiaries to repurchaseamong Parent, redeem or otherwise acquire any outstanding Subsidiary Securities.Harbor Acquisition Sub, Inc. and High Level Design Systems, Inc.

Capitalization, Etc. (a) The authorized capital stock of the Company Parent consists of: (i) 400,000,000 shares of 30,000,000 Company Shares Parent Common Stock; and 200,000 (ii) 10,000,000 shares of preferred stock stock, $0.01 par value per share (“Parent Preferred SharesStock”). As of July 305:00 p.m. (California time) on October 26, 2008: 2021 (ithe “Parent Listing Date”): (A) 16,580,886 Company Shares were issued and 16,579,886 Company 120,887,049 shares were outstanding; (ii) no Preferred Shares were outstanding; (iii) 3,043,646 Company Shares were issuable upon exercise of Company Warrants that Parent Common Stock were issued and outstanding; (iii)(AB) 1,613,535 Company Shares no shares of Parent Preferred Stock were issuable upon exercise issued and outstanding; (C) no shares of options issued Parent Common Stock were held by Parent as treasury shares; (D) 3,649,191 shares of Parent Common Stock were subject to issuance pursuant to the Company’s 2007 Equity Incentive Plan and outstanding Parent Options; (BE) 600,666 Company Shares 5,065,717 shares of Parent Common Stock were issuable upon exercise of options issued subject to issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amendedoutstanding Parent RSUs; and (ivF) 954,545 Company Shares no shares of Parent Common Stock were issuable upon conversion subject to issuance pursuant to outstanding Parent PSUs (assuming achievement of the Company Debentures. target level of performance for Parent PSUs at the end of the applicable performance period). (b) As of July 30, 2008, 1,185,694 Company Shares 5:00 p.m. (California time) on the Parent Listing Date: (i) 17,978,267 shares of Parent Common Stock were reserved for future issuance pursuant to Parent’s 2014 Stock Option and Incentive Plan (assuming achievement of the target level of performance for Parent PSUs at the end of the applicable performance period); and (ii) 5,631,443 shares of Parent Common Stock were reserved for future issuance pursuant to the Company’s 2007 Equity Incentive PlanParent ESPP. From 5:00 p.m. (California time) on the Parent Listing Date until the date of this Agreement, 431,797 Company Shares were reserved no shares of Parent Common Stock or Parent Preferred Stock have been issued except for future issuance shares of Parent Common Stock issued pursuant to the Company’s Employee exercise of Parent Options or the vesting of Parent RSUs or Parent PSUs, in each case outstanding on the Parent Listing Date and in accordance with their terms. (c) All outstanding shares of Parent Common Stock Purchase Plan are validly issued, fully paid, nonassessable and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amendedfree of any preemptive rights. The Company has delivered or made available to Parent copies authorized capital stock of each Merger Sub consists solely of (A) the Company Equity Plans1,000 shares of common stock, par value $0.001 per share, 100 of which cover the stock options and restricted stock awards granted by the Company that are outstanding as of the date of this Agreement, and (B) the forms of all stock option agreements and restricted stock award agreements evidencing such options and stock awards. (bd) Except (x) as set forth in Sections 3.2(a) and 3.2(b), (y) for optionsthe Convertible Notes and the Capped Calls and (z) for changes since 5:00 p.m. (California time) on the Parent Listing Date resulting from the exercise of Parent Options outstanding on the Parent Listing Date or the vesting of Parent RSUs or Parent PSUs outstanding on the Parent Listing Date in accordance with their terms, rights, securities as of the date of this Agreement: (i) Parent does not have any shares of capital stock or other equity interests outstanding; and plans referred to in Section 3.3(a)(ii) other than the Parent ESPP, there is no: (iA) outstanding option equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) issued or granted by Parent to acquire from the Company any shares of the capital stock or other securities of the CompanyParent; or (iiB) outstanding security of the Company security, instrument or obligation issued, granted or entered into by Parent that is or may become convertible into or exchangeable for any Company Shares. (c) There are no outstanding (i) securities of any of the Company’s Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity securities of Parent; or voting interest in, any Subsidiary of the Company, (iiC) options, warrants, stockholder rights plan (or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being plan commonly referred to collectively as a “Subsidiary Securitiespoison pill”) or (iv) other obligations by the Company Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any of its Subsidiaries to make any payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any of the Company’s Subsidiaries to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securitiesother securities.

Capitalization, Etc. (a) The authorized share capital stock of the Company Parent consists of 30,000,000 Company Shares and 200,000 shares of preferred stock (“Preferred Shares”). As of July 30, 2008of: (i) 16,580,886 Company 992,000,000 Parent Common Shares; and (ii) 8,000,000 Parent Preferred Shares. As of the close of business on November 16, 2017 (the “Parent Listing Date”): (i) 491,141,269 Parent Common Shares were issued and 16,579,886 Company shares were outstandingissued; (ii) no Parent Preferred Shares were outstandingissued; (iii) 3,043,646 Company 13,467,860 Parent Common Shares were issuable upon exercise of Company Warrants that were issued and outstandingsubject to issuance pursuant to Parent Options; (iii)(Aiv) 1,613,535 Company 10,031,228 Parent Common Shares were issuable upon exercise of options issued subject to issuance pursuant to the Company’s 2007 Equity Incentive Plan Parent RSUs; and (Bv) 600,666 Company 1,610,235 Parent Common Shares (assuming achievement of the target level of performance at the end of the applicable performance period) were subject to issuance pursuant to Parent PRSUs. (b) As of the close of business on the Parent Listing Date: (i) 96,528,676 Parent Common Shares were issuable upon exercise of options issued reserved for future issuance pursuant to the CompanyParent’s 1994 Non-Qualified Amended and Restated 1995 Stock Option Plan, as amended; and (ivii) 954,545 Company Shares were issuable upon conversion of the Company Debentures. As of July 30, 2008, 1,185,694 Company 25,804,402 Parent Common Shares were reserved for future issuance pursuant to the CompanyParent’s 2007 Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s 2000 Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to From the close of business on the Parent copies of each of (A) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company that are outstanding as of Listing Date until the date of this Agreement, no Parent Common Shares or Parent Preferred Shares have been issued except for Parent Common Shares issued pursuant to the exercise of Parent Options or the vesting of Parent RSUs or Parent PRSUs, in each case outstanding on the Parent Listing Date and (B) the forms of all stock option agreements and restricted stock award agreements evidencing such options and stock awardsin accordance with their terms. (bc) Except for optionsAll of the issued Parent Common Shares have been duly authorized and validly issued, rightsand are fully paid and no further capital calls can be made in respect of such shares. (d) As of the Parent Listing Date, securities except (x) as set forth in Sections 3.2(a) and plans referred to in Section 3.3(a3.2(b), (y) for securities owned by Parent or any of its Subsidiaries and (z) for changes since the Parent Listing Date resulting from the exercise of Parent Options outstanding on the Parent Listing Date or the vesting of Parent RSUs or Parent PRSUs outstanding on the Parent Listing Date in accordance with their terms, there is are no there are no: (i) outstanding option equity-based compensation awards, subscriptions, options, calls, warrants or right other rights, Contracts, arrangements or commitments of any character issued or granted by Parent relating to acquire from the Company issued or unissued shares of Parent (whether or not currently exercisable) or obligating Parent to issue or sell any shares of the capital stock of the Companyof, or other equity interests in, Parent; or (ii) shares of, or other voting securities or ownership interests in, Parent that have been issued by Parent which are outstanding; (iii) outstanding security of the Company securities, instruments or obligations issued by Parent that is are or may become convertible into or exchangeable for any Company Shares. (c) There are no outstanding (i) shares or other securities of Parent; (iv) outstanding restricted shares, restricted share units, stock appreciation rights, performance shares, contingent Table of Contents value rights, “phantom” stock or similar securities or rights issued or granted by Parent that are derivative of or provide economic benefits based, directly or indirectly, on the value or price of any of the Company’s Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any bonds, debentures, notes or other indebtedness having voting debtrights or convertible into securities having voting rights) in, or ownership interests in Parent; or (v) stockholder rights plans (or similar plans containing any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being aspects commonly referred to collectively as a “Subsidiary Securitiespoison pill”) or (iv) other obligations by the Company Contracts under which Parent is or may become obligated to sell or otherwise issue any of shares or any other securities of its Subsidiaries to make any payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any of the Company’s Subsidiaries to repurchase, redeem or otherwise acquire any outstanding Subsidiary SecuritiesParent.

Capitalization, Etc. (a) The As of the date of this Agreement, the authorized capital stock of the Company Parent consists of: (i) 400,000,000 shares of 30,000,000 Company Shares Parent Common Stock; and 200,000 (ii) 2,000,000 shares of preferred stock stock, $0.01 par value per share (“Parent Preferred SharesStock”). As of July 305:00 p.m. (California time) on January 12, 2008: 2024 (ithe “Parent Listing Date”): (A) 16,580,886 Company Shares 152,521,036 shares of Parent Common Stock were issued and 16,579,886 Company shares were outstandingoutstanding (inclusive of 4,806 Parent Restricted Shares); (iiB) no shares of Parent Preferred Shares were outstanding; (iii) 3,043,646 Company Shares were issuable upon exercise of Company Warrants that Stock were issued and outstanding; (iii)(AC) 1,613,535 Company Shares 4,739,740 shares of Parent Common Stock were issuable upon exercise held by Parent as treasury shares; (D) 1,646,475 shares of options issued Parent Common Stock were subject to issuance pursuant to outstanding Parent Options; (E) 4,370,282 shares of Parent Common Stock were subject to issuance pursuant to outstanding Parent RSUs; and (F) 184,464 shares of Parent Common Stock were subject to issuance pursuant to outstanding Parent PSUs (assuming achievement of the Companytarget level of performance for Parent PSUs at the end of the applicable performance period). (b) As of 5:00 p.m. (California time) on the Parent Listing Date: (i) 12,388,522 shares of Parent Common Stock were reserved for future issuance pursuant to Parent’s 2007 2006 Employee Equity Incentive Plan and (Bassuming achievement of the target level of performance for Parent PSUs at the end of the applicable performance period); (ii) 600,666 Company Shares 368,407 shares of Parent Common Stock were issuable upon exercise of options issued reserved for future issuance pursuant to the CompanyParent’s 1994 2017 Non-Qualified Stock Option Employee Directors Equity Incentive Plan, as amended; and (iviii) 954,545 Company Shares were issuable upon conversion 13,486,609 shares of the Company Debentures. As of July 30, 2008, 1,185,694 Company Shares Parent Common Stock were reserved for future issuance pursuant to the Company’s 2007 Equity Incentive PlanParent ESPP. (c) All shares of Parent Common Stock issuable in the Merger will be when issued in accordance with the terms of this Agreement, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan duly authorized, validly issued, fully paid, nonassessable and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent copies free of each of any preemptive rights. (Ad) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company that are outstanding as As of the date of this Agreement, except (x) as set forth in Sections 3.2(a) and Section 3.2(b), (y) for the Parent ESPP, and (Bz) for changes since 5:00 p.m. (California time) on the forms Parent Listing Date resulting from the exercise of all stock option agreements and restricted stock award agreements evidencing such options and stock awards. (b) Except for options, rights, securities and plans referred to Parent Options outstanding on the Parent Listing Date or the vesting of Parent RSUs or Parent PSUs outstanding on the Parent Listing Date in Section 3.3(a)accordance with their terms, there is no: (i) outstanding option equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) issued or granted by Parent to acquire from the Company any shares of Parent Common Stock to acquire any shares of the capital stock or other securities of the CompanyParent; or (ii) outstanding security of the Company security, instrument or obligation issued, granted or entered into by Parent that is or may become convertible into or exchangeable for any Company Shares. (c) There are no outstanding (i) shares or other securities of any of the Company’s Subsidiaries convertible into Parent Common Stock; or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) obligations of the Company to grant, extend stockholder rights plan (or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being plan commonly referred to collectively as a “Subsidiary Securitiespoison pill”) or (iv) other obligations by the Company Contract under which Parent is or may become obligated to sell or otherwise issue any shares of Parent Common Stock or any other securities of its Subsidiaries to make any payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any of the Company’s Subsidiaries to repurchase, redeem or otherwise acquire any outstanding Subsidiary SecuritiesParent.

Capitalization, Etc. (a) The authorized share capital stock of the Company Parent consists of 30,000,000 Company Shares and 200,000 shares of preferred stock (“Preferred Shares”). As of July 30, 2008of: (i) 16,580,886 Company 992,000,000 Parent Common Shares; and (ii) 8,000,000 Parent Preferred Shares. As of the close of business on November 16, 2017 (the “Parent Listing Date”): (i) 491,141,269 Parent Common Shares were issued and 16,579,886 Company shares were outstandingissued; (ii) no Parent Preferred Shares were outstandingissued; (iii) 3,043,646 Company 13,467,860 Parent Common Shares were issuable upon exercise of Company Warrants that were issued and outstandingsubject to issuance pursuant to Parent Options; (iii)(Aiv) 1,613,535 Company 10,031,228 Parent Common Shares were issuable upon exercise of options issued subject to issuance pursuant to the Company’s 2007 Equity Incentive Plan Parent RSUs; and (Bv) 600,666 Company 1,610,235 Parent Common Shares (assuming achievement of the target level of performance at the end of the applicable performance period) were subject to issuance pursuant to Parent PRSUs. (b) As of the close of business on the Parent Listing Date: (i) 96,528,676 Parent Common Shares were issuable upon exercise of options issued reserved for future issuance pursuant to the CompanyParent’s 1994 Non-Qualified Amended and Restated 1995 Stock Option Plan, as amended; and (ivii) 954,545 Company Shares were issuable upon conversion of the Company Debentures. As of July 30, 2008, 1,185,694 Company 25,804,402 Parent Common Shares were reserved for future issuance pursuant to the CompanyParent’s 2007 Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s 2000 Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to From the close of business on the Parent copies of each of (A) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company that are outstanding as of Listing Date until the date of this Agreement, no Parent Common Shares or Parent Preferred Shares have been issued except for Parent Common Shares issued pursuant to the exercise of Parent Options or the vesting of Parent RSUs or Parent PRSUs, in each case outstanding on the Parent Listing Date and (B) the forms of all stock option agreements and restricted stock award agreements evidencing such options and stock awardsin accordance with their terms. (bc) Except for optionsAll of the issued Parent Common Shares have been duly authorized and validly issued, rightsand are fully paid and no further capital calls can be made in respect of such shares. (d) As of the Parent Listing Date, securities except (x) as set forth in Sections 3.2(a) and plans referred to in Section 3.3(a3.2(b), (y) for securities owned by Parent or any of its Subsidiaries and (z) for changes since the Parent Listing Date resulting from the exercise of Parent Options outstanding on the Parent Listing Date or the vesting of Parent RSUs or Parent PRSUs outstanding on the Parent Listing Date in accordance with their terms, there is are no there are no: (i) outstanding option equity-based compensation awards, subscriptions, options, calls, warrants or right other rights, Contracts, arrangements or commitments of any character issued or granted by Parent relating to acquire from the Company issued or unissued shares of Parent (whether or not currently exercisable) or obligating Parent to issue or sell any shares of the capital stock of the Companyof, or other equity interests in, Parent; or (ii) shares of, or other voting securities or ownership interests in, Parent that have been issued by Parent which are outstanding; (iii) outstanding security of the Company securities, instruments or obligations issued by Parent that is are or may become convertible into or exchangeable for any Company Shares. (c) There are no outstanding (i) shares or other securities of Parent; (iv) outstanding restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights issued or granted by Parent that are derivative of or provide economic benefits based, directly or indirectly, on the value or price of any of the Company’s Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any bonds, debentures, notes or other indebtedness having voting debtrights or convertible into securities having voting rights) in, or ownership interests in Parent; or (v) stockholder rights plans (or similar plans containing any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being aspects commonly referred to collectively as a “Subsidiary Securitiespoison pill”) or (iv) other obligations by the Company Contracts under which Parent is or may become obligated to sell or otherwise issue any of shares or any other securities of its Subsidiaries to make any payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any of the Company’s Subsidiaries to repurchase, redeem or otherwise acquire any outstanding Subsidiary SecuritiesParent.

Capitalization, Etc. (a) The authorized capital stock of the Company Parent consists of 30,000,000 Company Shares and 200,000 shares of preferred stock (“Preferred Shares”). As of July 30, 2008of: (i) 16,580,886 Company Shares were 100,000,000 shares of Parent Common Stock, of which 49,511,273 shares have been issued and 16,579,886 Company shares were outstandingare outstanding as of October 31, 2001; and (ii) 10,000,000 A-16 shares of Parent Preferred Stock, of which no Preferred Shares were shares are outstanding; (iii) 3,043,646 Company Shares were issuable upon exercise . Parent does not hold any shares of Company Warrants that were issued and outstanding; (iii)(A) 1,613,535 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 2007 Equity Incentive Plan and (B) 600,666 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 954,545 Company Shares were issuable upon conversion its capital stock in its treasury. All of the Company Debenturesoutstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of July 30, 2008, 1,185,694 Company Shares were reserved for future issuance pursuant to the Company’s 2007 Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent copies of each of (A) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company that are outstanding as of the date of this Agreement, and (B) the forms there are no shares of all stock option agreements and restricted stock award agreements evidencing such options and stock awardsParent Common Stock held by any Subsidiary of Parent. (b) Except for optionsAs of October 31, rights, securities and plans referred to in Section 3.3(a), there is no2001: (i) outstanding option or right to acquire from the Company any 1,017,799 shares of Parent Common Stock reserved for future issuance pursuant to stock options granted and outstanding under Parents' 1997 Equity Incentive Plan; (ii) 4,258,580 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 2000 Equity Incentive Plan; (iii) 295,000 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 2000 Non-Employee Director's Stock Option Plan; (iv) 376,303 shares of Parent Common Stock are reserved for future issuance pursuant to Parent's 2000 Employee Stock Purchase Plan; (v) 581,793 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under the Agritope, Inc. 1997 Stock Award Plan; (vi) 461,265 shares of Parent Common Stock are reserved for future issuance upon the exercise of put or call options arising out of the acquisition of Artemis Pharmaceuticals GmbH. (c) All outstanding capital stock, options and other securities of Parent have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts. (d) All of the outstanding shares of capital stock of the Company; or (ii) outstanding security corporations identified in Part 4.1 of the Company that is convertible into or exchangeable for any Company Shares. (c) There Parent Disclosure Schedule have been duly authorized and are validly issued, are fully paid and nonassessable and free of preemptive rights, with no outstanding (i) securities personal liability attaching to the ownership thereof, and are owned beneficially and of record by Parent, free and clear of any of the Company’s Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any of the Company’s Subsidiaries to repurchase, redeem or otherwise acquire any outstanding Subsidiary SecuritiesEncumbrances.

Capitalization, Etc. (a) The authorized capital stock of the Company Parent consists of 30,000,000 Company Shares and 200,000 shares of preferred stock (“Preferred Shares”). As of July 30, 2008of: (i) 16,580,886 Company Shares were issued 100,000,000 shares of Parent Common Stock; and 16,579,886 Company shares were outstanding; (ii) no 1,000,000 shares of Parent Preferred Shares were outstanding; (iii) 3,043,646 Company Shares were issuable upon exercise Stock. As of Company Warrants that April 27, 2001, 60,293,702 shares of Parent Common Stock were issued and outstanding; (iii)(A) 1,613,535 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 2007 Equity Incentive Plan and (B) 600,666 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 954,545 Company Shares were issuable upon conversion of the Company Debentures. As of July 30, 2008, 1,185,694 Company Shares were reserved for future issuance pursuant to the Company’s 2007 Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent copies of each of (A) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company that are outstanding as of the date of this Agreement, no shares of Parent Preferred Stock are issued or outstanding. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. (b) As of the date of this Agreement: (i) 1,548,821 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1991 Stock Option Plan; (ii) 1,884,998 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1994 Stock and Option Plan; (iii) 8,037,900 shares of Parent Common Stock are reserved for future issuance, pursuant to stock options granted and outstanding under Parent's 1996 Stock and Option Plan; (iv) 342,517 shares of Parent Common Stock are reserved for future issuance pursuant to Parent's Employee Stock Purchase Plan and (Bv) 3,739,432 shares of Parent Common Stock are reserved for future issuance upon the conversion of Parent's outstanding 5% Convertible Subordinated Notes due 2007. Parent has made available to the Company accurate and complete copies of all stock option plans pursuant to which Parent has ever granted stock options, and the forms of all stock option agreements and restricted stock award agreements evidencing such options and stock awards. (b) Except for options, rights, securities and plans referred to in Section 3.3(a). As the date of this Agreement, there is noare outstanding options to purchase 11,480,085 shares of Parent Common Stock. Parent has no present intention to issue any shares of Parent capital stock or other securities other than pursuant to: (i) the exercise or conversion of outstanding option options, warrants or right other rights (whether or not currently exercisable) to acquire from the Company any shares of the capital stock or other securities of Parent, (ii) to Parent's Employee Stock Purchase Plan and 401(k) Plan, (iii) upon the conversion of any Parent's outstanding 5% Convertible Subordinated Notes due 2007; and (iv) upon the exercise of options to purchase Parent Common Stock issued after the date of this Agreement under existing option plans of Parent in the ordinary course of business and consistent with past practice. (c) Except as set forth in Section 3.4(c) of the CompanyParent Disclosure Schedule, there is no (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; or (ii) outstanding security of the Company security, instrument or obligation that is or may become convertible into or exchangeable for any Company Shares. (c) There are no outstanding (i) shares of the capital stock or other securities of Parent; (iii) stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any securities; or (iv) to the Company’s Subsidiaries convertible into knowledge of Parent, condition or exchangeable circumstance that would reasonably be expected to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock of, or other equity or voting interest in, any Subsidiary securities of the Company, Parent. (iid) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the The authorized capital stock of the Subsidiaries Merger Sub consists of 3,000 shares of common stock, of which 100 are issued and outstanding. All of the Companyoutstanding shares of Merger Sub common stock have been duly authorized and validly issued, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations by the Company or any and are fully paid and nonassessable. Merger Sub is a wholly-owned subsidiary of its Subsidiaries to make any payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any of the Company’s Subsidiaries to repurchase, redeem or otherwise acquire any outstanding Subsidiary SecuritiesParent.

Capitalization, Etc. (a) The authorized capital stock of the Company Parent consists of 30,000,000 Company Shares and 200,000 shares of preferred stock (“Preferred Shares”). As of July 30, 2008of: (i) 16,580,886 Company Shares were 100,000,000 shares of Parent Common Stock, of which 49,511,273 shares have been issued and 16,579,886 Company shares were outstandingare outstanding as of October 31, 2001; and (ii) 10,000,000 shares of Parent Preferred Stock, of which no Preferred Shares were shares are outstanding; (iii) 3,043,646 Company Shares were issuable upon exercise . Parent does not hold any shares of Company Warrants that were issued and outstanding; (iii)(A) 1,613,535 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 2007 Equity Incentive Plan and (B) 600,666 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 954,545 Company Shares were issuable upon conversion its capital stock in its treasury. All of the Company Debenturesoutstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of July 30, 2008, 1,185,694 Company Shares were reserved for future issuance pursuant to the Company’s 2007 Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent copies of each of (A) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company that are outstanding as of the date of this Agreement, and (B) the forms there are no shares of all stock option agreements and restricted stock award agreements evidencing such options and stock awardsParent Common Stock held by any Subsidiary of Parent. (b) Except for optionsAs of October 31, rights, securities and plans referred to in Section 3.3(a), there is no2001: (i) outstanding option or right to acquire from the Company any 1,017,799 shares of Parent Common Stock reserved for future issuance pursuant to stock options granted and outstanding under Parents' 1997 Equity Incentive Plan; (ii) 4,258,580 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 2000 Equity Incentive Plan; (iii) 295,000 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 2000 Non-Employee Director's Stock Option Plan; (iv) 376,303 shares of Parent Common Stock are reserved for future issuance pursuant to Parent's 2000 Employee Stock Purchase Plan; (v) 581,793 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under the Agritope, Inc. 1997 Stock Award Plan; (vi) 461,265 shares of Parent Common Stock are reserved for future issuance upon the exercise of put or call options arising out of the acquisition of Artemis Pharmaceuticals GmbH. (c) All outstanding capital stock, options and other securities of Parent have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts. (d) All of the outstanding shares of capital stock of the Company; or (ii) outstanding security corporations identified in Part 4.1 of the Company that is convertible into or exchangeable for any Company Shares. (c) There Parent Disclosure Schedule have been duly authorized and are validly issued, are fully paid and nonassessable and free of preemptive rights, with no outstanding (i) securities personal liability attaching to the ownership thereof, and are owned beneficially and of record by Parent, free and clear of any of the Company’s Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any of the Company’s Subsidiaries to repurchase, redeem or otherwise acquire any outstanding Subsidiary SecuritiesEncumbrances.