Common use of Capitalization of Parent Clause in Contracts

Capitalization of Parent. (a) The authorized capital stock of Parent consists of 100,000,000 shares of Parent Common Stock and 10,000,000 shares of preferred stock, par value of $0.0001 per share. As of the Closing Date, there will be 1,089,000 shares of Parent Common Stock outstanding, and no shares of Parent’s preferred stock will be outstanding or designated. All shares of Parent Stock currently outstanding have been duly authorized, validly issued and are fully paid and non-assessable. There are no outstanding (i) options, warrants, calls, stock appreciation rights, phantom stock or similar rights with respect to any securities of Parent, (ii) purchase agreements, participation agreements, subscription rights, conversion rights, exchange rights or other securities or contracts that could require Parent to issue, sell or otherwise cause to become outstanding any of its authorized but unissued shares of capital stock or (iii) any securities convertible into, exchangeable for or carrying a right or option to purchase shares of capital stock or to create, authorize, issue, sell or otherwise cause to become outstanding any new class of securities or that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and right occurring in respect of holders of the capital stock of Parent. There are no conditions or circumstances that may give rise to or provide a basis for the assertion of a claim by any Person that such Person is entitled to acquire or receive from Parent any shares of Parent’s capital stock. (b) Parent owns, beneficially and of record, 100% of the interest in Merger Sub. There are not (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire or sell or issue any membership interests of Merger Sub; (ii) outstanding security, instrument or obligation that is or may become convertible into or exercisable or exchangeable for any membership interests of Merger Sub; (iii) contract, agreement or other arrangement (whether written or oral) under which Merger Sub is or may become obligated to acquire, sell or otherwise issue any membership interests; or (iv) contract, agreement or other arrangement (whether written or oral) that contains a right that is subject to a condition or circumstance the occurrence of which would 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 membership interest in Merger Sub. (c) All capital stock, membership interests or other equity securities of Parent and Merger Sub have been issued in compliance with all requirements of its Organizational Documents and any applicable Securities Laws. (d) The Merger Shares to be issued to the Members pursuant to this Agreement, will, when issued in accordance with the provisions of this Agreement, have been duly authorized and validly issued, and be fully paid, non-assessable and free and clear of any Encumbrances other than applicable Securities Laws.

Capitalization of Parent. (a) The Parent's entire authorized capital stock of Parent consists of 100,000,000 42,723 shares which are classified as common stock, with a par value of 500 French Francs per share ("Parent Common"). As of the date hereof, there are 41,140 shares of Parent Common Stock issued and 10,000,000 outstanding and 1,583 shares reserved for issuance in connection with options awarded under that certain Plan for Application for Shares in Axiohm (all of preferred stock, par value of $0.0001 per sharewhich options are outstanding (the "Parent Outstanding Options")). As of the Closing DateExcept as set forth above, there will be 1,089,000 shares of Parent Common Stock outstanding, and no shares of Parent’s preferred stock will be outstanding or designated. All shares of Parent Stock currently outstanding have been duly authorized, validly issued and are fully paid and non-assessable. There are no outstanding (i) options, warrants, calls, stock appreciation rights, phantom no shares of capital stock or similar rights with respect to any other voting securities of Parent, (ii) purchase agreements, participation agreements, subscription rights, conversion rights, exchange rights no securities of Parent or other securities or contracts that could require Parent to issue, sell or otherwise cause to become outstanding any of its authorized but unissued the Parent Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities of Parent (iii) no options, warrants or other rights to acquire from Parent or any of the Parent Subsidiaries (including any rights issued or issuable under a shareholders rights plan or similar arrangement), and no obligations of Parent or any of the Parent Subsidiaries to issue, any capital stock, voting securities or securities convertible into, into or exchangeable for or carrying a right or option to purchase shares of capital stock or to createvoting securities of Parent, authorize(iv) no equity equivalents, issue, sell interests in the ownership or otherwise cause to become outstanding earnings of Parent or any new class of securities or that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and right occurring in respect of holders of the capital stock of Parent. There are no conditions Parent Subsidiaries or circumstances that may give rise to or provide a basis for other similar rights (with the assertion of a claim by any Person that such Person is entitled to acquire or receive from Parent any shares of Parent’s capital stock. (b) Parent owns, beneficially and of record, 100% of the interest securities listed in Merger Sub. There are not clauses (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire or sell or issue any membership interests of Merger Sub; (ii) outstanding security, instrument or obligation that is or may become convertible into or exercisable or exchangeable for any membership interests of Merger Sub; (iii) contract, agreement or other arrangement (whether written or oral) under which Merger Sub is or may become obligated to acquire, sell or otherwise issue any membership interests; or through (iv) contractreferred to collectively as "Axiohm's Securities"), agreement or other arrangement and (whether written or oralv) that contains a right that is subject to a condition or circumstance the occurrence of which would 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 membership interest in Merger Sub. (c) All capital stock, membership interests or other equity securities no outstanding obligations of Parent or any of the Parent Subsidiaries to repurchase, redeem or otherwise acquire any of Axiohm's Securities or to make any investment (by loan, capital contribution or otherwise) in any other entity. The Parent Disclosure Statement sets forth a list of all Parent Outstanding Options, which such options are currently vested and Merger Sub have been issued in compliance with all requirements which such options will vest as a result of its Organizational Documents and any applicable Securities Laws. (d) The Merger Shares to be issued to the Members pursuant to transactions contemplated by this Agreement, will, when issued in accordance with the provisions of this Agreement, have been duly authorized and validly issued, and be fully paid, non-assessable and free and clear of any Encumbrances other than applicable Securities Laws.

Capitalization of Parent. (a) The authorized capital stock of Parent consists of 100,000,000 shares of Parent Common Stock and 10,000,000 shares of preferred stock, par value of $0.0001 per share. As of the Closing Dateclose of business on December 31, there will be 1,089,000 shares 1999, 7,294,478 ordinary shares, nominal value 8 Euros per share, of Parent Common Stock (the "Parent Shares") were issued and outstanding, and no 300,000 Parent Shares were held in Parent's treasury and reserved for grants under option and other stock-based plans. All the outstanding shares of Parent’s preferred 's capital stock are, and all shares which may be issued pursuant to Parent option plans will be outstanding or designated. All shares of Parent Stock currently outstanding have been be, when issued in accordance with the respective terms thereof, duly authorized, validly issued and are issued, fully paid and non-assessable. There are no outstanding Except (i) optionsas set forth in this Section 4.05, warrants(ii) for 980,415 bonds of Parent convertible or exchangeable for 980,415 Parent Shares, callsand (iii) for 5,696,261 warrants to purchase an aggregate of 284,813 Parent Shares, stock appreciation rightsas of December 31, phantom 1999 there were outstanding (x) no shares of capital stock or similar rights with respect to any other voting securities of Parent, (iiy) purchase agreements, participation agreements, subscription rights, conversion rights, exchange rights no securities of Parent convertible into or other securities or contracts that could require Parent to issue, sell or otherwise cause to become outstanding any of its authorized but unissued exchangeable for shares of capital stock or voting securities of Parent, and (iiiz) no options, warrants or other rights to acquire from Parent, and no preemptive or similar rights, subscriptions or other rights, convertible securities, agreements, arrangements or commitments of any character, relating to the capital stock of Parent, obligating Parent to issue, transfer or sell, any capital stock, voting securities or securities convertible into, into or exchangeable for or carrying a right or option to purchase shares of capital stock or voting securities of Parent or obligating Parent to creategrant, authorizeextend or enter into any such option, issuewarrant, sell subscription or other right, convertible security, agreement, arrangement or commitment (including equity equivalents or stock appreciation rights) (the items in clauses (x), (y) and (z) being referred to collectively as the "Parent Securities"). None of Parent or its Subsidiaries has any contractual obligation to redeem, repurchase or otherwise cause acquire any Parent Securities or any securities of any Parent Subsidiary, including as a result of the transactions contemplated by this Agreement. (b) There are no voting trusts or other agreements or understandings to become outstanding which Parent or any new class of securities or that give any Person its Subsidiaries is a party with respect to the right to receive any economic benefit or right similar to or derived from the economic benefits and right occurring in respect of holders voting of the capital stock of Parent. There are no conditions Parent or circumstances that may give rise to or provide a basis for the assertion of a claim by any Person that such Person is entitled to acquire or receive from Parent any shares of Parent’s capital stock. (b) Parent owns, beneficially and of record, 100% of the interest in Merger Sub. There are not (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire or sell or issue any membership interests of Merger Sub; (ii) outstanding security, instrument or obligation that is or may become convertible into or exercisable or exchangeable for any membership interests of Merger Sub; (iii) contract, agreement or other arrangement (whether written or oral) under which Merger Sub is or may become obligated to acquire, sell or otherwise issue any membership interests; or (iv) contract, agreement or other arrangement (whether written or oral) that contains a right that is subject to a condition or circumstance the occurrence of which would 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 membership interest in Merger Sub. (c) All capital stock, membership interests or other equity securities of Parent and Merger Sub have been issued in compliance with all requirements of its Organizational Documents and any applicable Securities LawsSubsidiaries. (d) The Merger Shares to be issued to the Members pursuant to this Agreement, will, when issued in accordance with the provisions of this Agreement, have been duly authorized and validly issued, and be fully paid, non-assessable and free and clear of any Encumbrances other than applicable Securities Laws.

Capitalization of Parent. (a) The authorized capital stock of Parent consists of 100,000,000 (i) 400,000,000 shares of Parent Common Stock and 10,000,000 (ii) 40,000,000 shares of preferred stockstock of Parent. At the close of business on October 19, par value of $0.0001 per share. As of the Closing Date, there will be 1,089,000 2012: (i) 122,191,977 shares of Parent Common Stock outstandingwere issued and outstanding (including 0 shares of restricted stock); (ii) 33,116,559 shares of Parent Common Stock were held by Parent in its treasury; (iii) 6,960,184 shares of Parent Common Stock were reserved for issuance in respect of outstanding and future awards under Parent's equity incentive plans (the "Parent Stock Plans" and all options to purchase Parent Common Stock granted pursuant to the Parent Stock Plans, the "Parent Stock Options"); and (iv) no shares of Parent’s 's preferred stock will be outstanding were issued or designatedoutstanding. All outstanding shares of capital stock of Parent Stock currently outstanding have been are, and all shares that may be issued will be, when issued, duly authorized, validly issued and are issued, fully paid and non-assessablenonassessable and not subject to or issued in violation of preemptive rights. There Except as otherwise provided in this Section 3.2(c), there are no not issued, reserved for issuance or outstanding (i) options, warrants, calls, stock appreciation rights, phantom any shares of capital stock or similar rights with respect to any other voting securities of Parent, (ii) purchase agreements, participation agreements, subscription rights, conversion rights, exchange rights any securities convertible into or other securities exchangeable or contracts that could require Parent to issue, sell or otherwise cause to become outstanding any of its authorized but unissued exercisable for shares of capital stock or voting securities of Parent or any Parent Subsidiary, or (iii) any warrants, calls, options or other rights to acquire from Parent or any Parent Subsidiary any capital stock, voting securities or securities convertible into, into or exchangeable or exercisable for or carrying a right or option to purchase shares of capital stock or voting securities of Parent or any Parent Subsidiary. Except as otherwise provided in this Section 3.2(c), there are no outstanding obligations of Parent or any Parent Subsidiary to create, authorize, (i) issue, sell deliver or sell, or caused to be issued, delivered or sold, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or voting securities of Parent or any Parent Subsidiary or (ii) repurchase, redeem or otherwise cause acquire any such securities. Neither Parent nor any Parent Subsidiary is a party to become outstanding any new class voting agreement with respect to the voting of securities or that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and right occurring such securities. Except as otherwise provided in respect of holders of the capital stock of Parent. There this Section 3.2(c), there are no conditions agreements, arrangements or circumstances that commitments of any character (contingent or otherwise) pursuant to which any person is or may give rise to or provide a basis for the assertion of a claim by any Person that such Person is be entitled to acquire or receive from Parent or a Parent Subsidiary any shares of Parent’s capital stock. (b) Parent ownspayment based on the revenues, beneficially and of record, 100% of the interest in Merger Sub. There are not (i) outstanding subscription, option, call, warrant earnings or right (whether or not currently exercisable) to acquire or sell or issue any membership interests of Merger Sub; (ii) outstanding security, instrument or obligation that is or may become convertible into or exercisable or exchangeable for any membership interests of Merger Sub; (iii) contract, agreement or other arrangement (whether written or oral) under which Merger Sub is or may become obligated to acquire, sell or otherwise issue any membership interests; or (iv) contract, agreement or other arrangement (whether written or oral) that contains a right that is subject to a condition or circumstance the occurrence of which would 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 membership interest in Merger Sub. (c) All capital stock, membership interests or other equity securities financial performance of Parent and Merger Sub have been issued in compliance with all requirements of its Organizational Documents and or any applicable Securities Laws. (d) The Merger Shares to be issued to the Members pursuant to this Agreement, will, when issued Parent Subsidiary or assets or calculated in accordance with the provisions of this Agreement, have been duly authorized and validly issued, and be fully paid, non-assessable and free and clear of any Encumbrances other than applicable Securities Lawstherewith.

Capitalization of Parent. (a) The total authorized capital stock of Parent consists of 100,000,000 shares of Parent Common Stock and 10,000,000 (i) 15,824,051 shares of preferred stock, par value of $0.0001 per share. As which 10,824,051 shares are designated Series A Stock (the "Parent Preferred Stock"), 7,366,666 of which designated shares are issued and outstanding as of the Closing Date, there will be 1,089,000 date of this Agreement; and (ii) 40,000,000 shares of common stock, of which (A) 6,179,500 shares are issued and outstanding on the date of this Agreement, (B) 10,824,051 shares are reserved for issuance upon conversion of the Parent Common Stock outstandingPreferred Stock, and (C) 1,900,000 shares are reserved for grant or exercise of options under the Parent's Stock Option and Incentive Plan and any other equity incentive plan for the benefit of Parent's employees. There are no shares of Parent’s preferred capital stock will be outstanding or designated. All shares of Parent Stock currently outstanding have been duly of any other class authorized, issued or outstanding. (b) Each outstanding share of Parent's capital stock is (i) duly authorized and validly issued and are (ii) fully paid and nonnonassessable and free of (x) any preemptive or similar rights under the Delaware General Corporation Law and the Certificate of Incorporation and By-assessable. There are laws of Parent and (y) any other preemptive or similar rights. (c) Other than outstanding options to purchase Parent's common stock, there are, and, other than as set forth below, as of the Effective Time there will be, no outstanding (i) options, warrants, calls, securities convertible into or exchangeable for any capital stock appreciation rights, phantom stock or similar rights with respect to any securities of Parent, (ii) purchase agreementsoptions, participation agreements, subscription rights, conversion rights, exchange rights warrants or other securities rights to purchase or contracts that could require Parent subscribe to issue, sell or otherwise cause to become outstanding any of its authorized but unissued shares of capital stock of Parent or securities convertible into or exchangeable for capital stock of Parent, or (iii) contracts, commitments, agreements, understandings, rights (including registration rights), arrangements, calls or claims of any securities convertible into, exchangeable for kind to which Parent is a party or carrying a right or option is bound relating to purchase shares the issuance of any capital stock or to createof Parent (clauses (i) through (iv), authorize, issue, sell or otherwise cause to become together with all outstanding any new class of securities or that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and right occurring in respect of holders of the capital stock of Parent, collectively, the "Parent Securities"). There are no conditions or circumstances The parties hereto understand and acknowledge that Parent may give rise to or provide a basis for the assertion of a claim by any Person that such Person is entitled to acquire or receive from Parent any issue additional shares of Parent’s its capital stock. (b) Parent owns, beneficially and of record, 100% of the interest in Merger Sub. There are not (i) outstanding subscription, option, call, warrant stock or right (whether or not currently exercisable) to acquire or sell or issue any membership interests of Merger Sub; (ii) outstanding security, instrument or obligation that is or may become securities convertible into or exercisable or exchangeable for any membership interests of Merger Sub; (iii) contract, agreement or other arrangement (whether written or oral) under which Merger Sub is or may become obligated to acquire, sell or otherwise issue any membership interests; or (iv) contract, agreement or other arrangement (whether written or oral) that contains a right that is subject to a condition or circumstance the occurrence of which would 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 membership interest in Merger Sub. (c) All capital stock, membership interests or other equity securities of Parent and Merger Sub have been issued in compliance with all requirements shares of its Organizational Documents and any applicable Securities Laws. (d) The Merger Shares to be issued to capital stock between the Members pursuant to this Agreement, will, when issued in accordance with the provisions date of this Agreement, have been duly authorized Agreement and validly issued, and be fully paid, non-assessable and free and clear of any Encumbrances other than applicable Securities Lawsthe Effective Time in connection with securing the necessary financing to consummate the Merger.

Capitalization of Parent. (a) The authorized capital stock of Parent consists of 100,000,000 of: (i) 125,000,000 shares of Parent Common Stock and 10,000,000 shares of preferred stockStock, par value $.001 per share (the "Parent Shares"), of which 12,200,000 shares are issued and outstanding and as of the date hereof, and (ii) 25,000,000 shares of Preferred Stock, par value $0.0001 .001 per share. As of the Closing Date, there will be 1,089,000 shares of Parent Common Stock outstanding, and no shares of Parent’s preferred stock will be which are outstanding or designatedas of the date hereof. All shares of the issued and outstanding Parent Stock currently outstanding Shares have been duly authorized, validly issued and are fully paid and non-assessable. There are no outstanding (i) options, warrants, calls, stock appreciation rights, phantom stock or similar rights with respect to any securities of Parent, (ii) purchase agreements, participation agreements, subscription rights, conversion rights, exchange rights or other securities or contracts that could require Parent to issue, sell or otherwise cause to become outstanding any of its authorized but unissued shares of capital stock or (iii) any securities convertible into, exchangeable for or carrying a right or option to purchase shares of capital stock or to create, authorize, issue, sell or otherwise cause to become outstanding any new class of securities or that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and right occurring in respect of holders of the capital stock of Parent. There are no conditions or circumstances that may give rise to or provide a basis for the assertion of a claim by any Person that such Person is entitled to acquire or receive from Parent any shares of Parent’s capital stock. (b) Parent owns, beneficially and of record, 100% of the interest in Merger Sub. There are not (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire or sell or issue any membership interests of Merger Sub; (ii) outstanding security, instrument or obligation that is or may become convertible into or exercisable or exchangeable for any membership interests of Merger Sub; (iii) contract, agreement or other arrangement (whether written or oral) under which Merger Sub is or may become obligated to acquire, sell or otherwise issue any membership interests; or (iv) contract, agreement or other arrangement (whether written or oral) that contains a right that is subject to a condition or circumstance the occurrence of which would 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 membership interest in Merger Sub. (c) All capital stock, membership interests or other equity securities of Parent and Merger Sub have been issued in compliance with all requirements of its Organizational Documents and any applicable Securities Laws. (d) The Merger Shares to be issued to the Members pursuant to this Agreement, will, when issued in accordance with the provisions of this Agreement, have been duly authorized and validly issued, and be are duly authorized, fully paid, non-assessable and free of preemptive rights. As of the date hereof, 4,000,000 Parent Shares were available for issuance under Parent's option plans. Options to acquire approximately 1,919,000 Parent Shares were issuable upon or otherwise deliverable in connection with the exercise of options outstanding on such date and warrants to acquire 600,350 shares to Parent Common Stock were outstanding. Except as set forth above, as of the date hereof, there are no outstanding (i) shares of capital stock or other voting securities of Parent; (ii) securities of Parent convertible into or exchangeable for shares of capital stock or voting securities of Parent; (iii) options or other rights to acquire from Parent and no obligations of Parent to issue, any capital stock, voting securities, or securities convertible into or exchangeable for capital stock or voting securities of Parent; or (iv) equity equivalents, interests in the ownership or earnings of Parent, or other similar rights (including stock appreciation rights) (collectively, "Parent Securities"). There are no outstanding obligations of Parent or any of its subsidiaries to repurchase, redeem or otherwise acquire any Parent Securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which Parent or any of its subsidiaries is a party or to which it is bound relating to the voting of any shares of capital stock of Parent. All of the outstanding capital stock of Parent's subsidiaries is owned by Parent, directly or indirectly, free and clear of any Encumbrances Lien or any other than applicable Securities Lawslimitation or restriction (including, any restriction on the right to vote or sell the same) except as may be provided as a matter of Law. There are no debt or equity securities of Parent or its subsidiaries convertible into or exchangeable for, no options or other rights to acquire from Parent or its subsidiaries, and no other contract, understanding, arrangement, or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly of, any capital stock or other ownership interests in, or any other securities of, any subsidiary of Parent. There are no outstanding contractual obligations of Parent or its subsidiaries to repurchase, redeem, or otherwise acquire any outstanding shares of capital stock or other ownership interests in any subsidiary of Parent. None of Parent's subsidiaries owns any capital stock of Parent.

Capitalization of Parent. (ai) The authorized capital stock of Parent consists of 100,000,000 (A) 110,000,000 shares of Parent Common Stock consisting of (1) 100,000,000 shares of Class A Common Stock, par value $0.0001 per share (“Parent Class A Common Stock”), and (2) 10,000,000 shares of Class B Common Stock, par value $0.0001 per share (“Parent Class B Common Stock”) and (B) 1,000,000 shares of preferred stock, par value of $0.0001 per shareshare (“Parent Preferred Stock”). As of Subject to the Closing DateSupplemental Financing, there will be 1,089,000 shares of Parent Common Stock outstanding, the issued and no outstanding shares of Parent’s preferred capital stock will be outstanding or designated. All consist of (x) 20,650,411 shares of Parent Class A Common Stock, (y) 5,000,000 shares of Parent Class B Common Stock currently outstanding have been duly authorizedand (z) 0 shares of Parent Preferred Stock. Except for the Supplemental Financing, validly issued and are fully paid those certain agreements set forth on Schedule 5.5(a)(i), no Parent Party is party to, and non-assessable. There to the knowledge of Parent, there are no outstanding (i) optionsother voting trusts, warrants, calls, stock appreciation rights, phantom stock proxies or similar rights other agreements or understandings with respect to any securities the voting of Parent, (ii) purchase agreements, participation agreements, subscription rights, conversion rights, exchange rights or other securities or contracts that could require Parent to issue, sell or otherwise cause to become outstanding any of its authorized but unissued the shares of capital stock or (iii) any securities convertible into, exchangeable for or carrying a right or option to purchase shares of capital stock or to create, authorize, issue, sell or otherwise cause to become outstanding any new class of securities or that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and right occurring in respect of holders of the capital stock of Parent. There are no conditions or circumstances that may give rise to or provide a basis for At the assertion Effective Time, each share of a claim by any Person that such Person is entitled to acquire or receive from Parent any shares Class B Common Stock will automatically convert into one share of Parent’s capital stockParent Class A Common Stock. (b) Parent owns, beneficially and of record, 100% of the interest in Merger Sub. There are not (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire or sell or issue any membership interests of Merger Sub; (ii) All outstanding security, instrument or obligation that is or may become convertible into or exercisable or exchangeable for any membership interests of Merger Sub; (iii) contract, agreement or other arrangement (whether written or oral) under which Merger Sub is or may become obligated to acquire, sell or otherwise issue any membership interests; or (iv) contract, agreement or other arrangement (whether written or oral) that contains a right that is subject to a condition or circumstance the occurrence of which would 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 membership interest in Merger Sub. (c) All capital stock, membership interests or other equity securities shares of Parent and Merger Sub have been issued in compliance with all requirements of its Organizational Documents and any applicable Securities Laws. (d) The Merger Shares to be issued to the Members pursuant to this Agreement, will, when issued in accordance with the provisions of this Agreement, Common Stock have been duly authorized and validly issued, are fully paid and be fully paid, non-assessable and free were issued in compliance with all applicable Laws and clear are not subject to and were not issued in violation of any Encumbrances purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Organizational Documents of Parent or any Contract to which Parent is a party or otherwise bound. All outstanding warrants of Parent have been duly authorized and validly issued, are fully paid and were issued in compliance with all applicable Laws and are not subject to and were not issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Organizational Documents of Parent or any Contract to which Parent is a party or otherwise bound. (iii) Other than (A) Parent Class B Common Stock, (B) the warrants of Parent set forth in Schedule 5.5(a)(iii), and (C) the Supplemental Financing, there are no options, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to which any Parent Party is a party or by which any of them is bound obligating any Parent Party to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of or other than applicable Securities LawsEquity Interests in any Parent Party. (iv) Each holder of any of the shares of Parent Common Stock initially issued prior to Parent’s initial public offering (A) is obligated to vote all of such shares of Parent Common Stock in favor of adopting this Agreement and approving the Merger and (B) is not entitled to elect to redeem any of such shares of Parent Common Stock pursuant to Parent’s certificate of incorporation, as amended.

Capitalization of Parent. (a) The authorized capital stock of Parent consists of 100,000,000 (i) 400,000,000 shares of Parent Common Stock and 10,000,000 (ii) 40,000,000 shares of preferred stockstock of Parent. At the close of business on October 19, par value of $0.0001 per share. As of the Closing Date, there will be 1,089,000 2012: (i) 122,191,977 shares of Parent Common Stock outstandingwere issued and outstanding (including 0 shares of restricted stock); (ii) 33,116,559 shares of Parent Common Stock were held by Parent in its treasury; (iii) 6,960,184 shares of Parent Common Stock were reserved for issuance in respect of outstanding and future awards under Parent’s equity incentive plans (the “Parent Stock Plans” and all options to purchase Parent Common Stock granted pursuant to the Parent Stock Plans, the “Parent Stock Options”); and (iv) no shares of Parent’s preferred stock will be outstanding were issued or designatedoutstanding. All outstanding shares of capital stock of Parent Stock currently outstanding have been are, and all shares that may be issued will be, when issued, duly authorized, validly issued and are issued, fully paid and non-assessablenonassessable and not subject to or issued in violation of preemptive rights. There Except as otherwise provided in this Section 3.2(c), there are no not issued, reserved for issuance or outstanding (i) options, warrants, calls, stock appreciation rights, phantom any shares of capital stock or similar rights with respect to any other voting securities of Parent, (ii) purchase agreements, participation agreements, subscription rights, conversion rights, exchange rights any securities convertible into or other securities exchangeable or contracts that could require Parent to issue, sell or otherwise cause to become outstanding any of its authorized but unissued exercisable for shares of capital stock or voting securities of Parent or any Parent Subsidiary, or (iii) any warrants, calls, options or other rights to acquire from Parent or any Parent Subsidiary any capital stock, voting securities or securities convertible into, into or exchangeable or exercisable for or carrying a right or option to purchase shares of capital stock or to createvoting securities of Parent or any Parent Subsidiary. Except as otherwise provided in this Section 3.2(c), authorize, issue, sell or otherwise cause to become outstanding any new class of securities or that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and right occurring in respect of holders of the capital stock of Parent. There there are no conditions outstanding obligations of Parent or circumstances that may give rise any Parent Subsidiary to or provide a basis for the assertion of a claim by any Person that such Person is entitled to acquire or receive from Parent any shares of Parent’s capital stock. (b) Parent owns, beneficially and of record, 100% of the interest in Merger Sub. There are not (i) outstanding subscriptionissue, optiondeliver or sell, callor caused to be issued, warrant delivered or right (whether sold, any capital stock, voting securities or not currently exercisable) to acquire securities convertible into or sell exchangeable or issue exercisable for capital stock or voting securities of Parent or any membership interests of Merger Sub; Parent Subsidiary or (ii) outstanding securityrepurchase, instrument or obligation that is or may become convertible into or exercisable or exchangeable for any membership interests of Merger Sub; (iii) contract, agreement or other arrangement (whether written or oral) under which Merger Sub is or may become obligated to acquire, sell redeem or otherwise issue acquire any membership interests; or (iv) contract, such securities. Neither Parent nor any Parent Subsidiary is a party to any voting agreement or other arrangement (whether written or oral) that contains a right that is subject to a condition or circumstance the occurrence of which would give rise to or provide a basis for the assertion of a claim by any Person with respect to the effect that such Person is entitled to acquire or receive any membership interest in Merger Sub. (c) All capital stock, membership interests or other equity securities of Parent and Merger Sub have been issued in compliance with all requirements of its Organizational Documents and any applicable Securities Laws. (d) The Merger Shares to be issued to the Members pursuant to this Agreement, will, when issued in accordance with the provisions of this Agreement, have been duly authorized and validly issued, and be fully paid, non-assessable and free and clear voting of any Encumbrances other than applicable Securities Laws.such securities. Except as otherwise provided in this

Capitalization of Parent. Schedule 6.3 of the Disclosure Schedule (aParent) The authorized sets forth a complete and accurate list of the number and type of authorized, issued and outstanding shares of capital stock of Parent consists of 100,000,000 shares of Parent Common Stock and 10,000,000 shares of preferred stock, par value of $0.0001 per share. As as of the Closing Date, there will be 1,089,000 shares of Parent Common Stock outstanding, and no shares of Parent’s preferred stock will be outstanding or designated. All shares of Parent Stock currently outstanding have been duly authorized, validly issued and are fully paid and non-assessabledate hereof. There are no other shares of capital stock or other equity securities of Parent authorized, issued, reserved for issuance or outstanding and except as set forth on Schedule 6.3 of the Disclosure Schedule (i) Parent), there are no outstanding or authorized options, warrants, callsconvertible or exchangeable securities, subscriptions, rights (including preemptive rights), calls or commitments of any character whatsoever, relating to the capital stock appreciation rightsof, or other equity or voting interest in, Parent, to which Parent is a party or is bound requiring the issuance, delivery or sale of shares of capital stock of Parent. Except as set forth on Schedule 6.3 of the Disclosure Schedule (Parent), there are no outstanding or authorized stock appreciation, phantom stock stock, profit participation or similar rights with respect to any securities of Parentthe capital stock of, (ii) purchase agreements, participation agreements, subscription rights, conversion rights, exchange rights or other securities equity or contracts that could require voting interest in, Parent to issuewhich Parent is a party or is bound. Except as set forth on Schedule 6.3 of the Disclosure Schedule (Parent), sell Parent has no authorized or outstanding bonds, debentures, notes or other indebtedness the holders of which have the right to vote (or convertible into, exchangeable for, or evidencing the right to subscribe for or acquire securities having the right to vote). Except as set forth on Schedule 6.3 of the Disclosure Schedule (Parent), there are no contracts to which Parent is a party or by which it is bound to (i) repurchase, redeem or otherwise cause to become outstanding acquire any of its authorized but unissued shares of capital stock of, or other equity or voting interest in, Parent or (iiiii) vote or dispose of any securities convertible into, exchangeable for or carrying a right or option to purchase shares of capital stock of, or to createother equity or voting interest in, authorize, issue, sell or otherwise cause to become outstanding any new class of securities or that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and right occurring in respect of holders Parent. Except as set forth on Schedule 6.3 of the capital stock of Disclosure Schedule (Parent. There ), there are no conditions registration rights, irrevocable proxies or circumstances that may give rise voting agreements with respect to or provide a basis for the assertion of a claim by any Person that such Person is entitled to acquire or receive from Parent any shares of Parent’s capital stock. (b) Parent ownsstock of, beneficially and of record, 100% of the interest in Merger Sub. There are not (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire or sell or issue any membership interests of Merger Sub; (ii) outstanding security, instrument or obligation that is or may become convertible into or exercisable or exchangeable for any membership interests of Merger Sub; (iii) contract, agreement or other arrangement (whether written or oral) under which Merger Sub is or may become obligated to acquire, sell or otherwise issue any membership interests; or (iv) contract, agreement or other arrangement (whether written or oral) that contains a right that is subject to a condition or circumstance the occurrence of which would 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 membership interest in Merger Sub. (c) All capital stock, membership interests or other equity securities of Parent and Merger Sub have been issued in compliance with all requirements of its Organizational Documents and any applicable Securities Lawsor voting interest in, Parent. (d) The Merger Shares to be issued to the Members pursuant to this Agreement, will, when issued in accordance with the provisions of this Agreement, have been duly authorized and validly issued, and be fully paid, non-assessable and free and clear of any Encumbrances other than applicable Securities Laws.