Common use of Target Capital Structure Clause in Contracts

Target Capital Structure. The authorized capital stock of Target ------------------------ consists of 80,000,000 shares of Common Stock, $.0001 par value, of which there were 42,803,204 shares issued and outstanding as of the close of business on March 14, 1997 and 2,000,000 shares of Preferred ▇▇▇▇▇, $.▇▇▇▇ par value, of which no shares are issued or outstanding. Since the close of business on March 14, 1997, no shares of Target Capital Stock have been issued except pursuant to the exercise of options outstanding as of March 14, 1997 under the Target Stock Option Plans or pursuant to the Target ESPP. All outstanding shares of Target Common Stock are duly authorized, validly issued, fully paid and nonassessable and are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of Target or any agreement or document to which Target is a party or by which it is bound. As of the close of business on March 14, 1997, Target had reserved (i) an aggregate of 9,760,000 shares of Target Common Stock, net of exercises, for issuance to employees, consultants and non-employee directors pursuant to the Target Stock Option Plans, under which, as of the close of business on March 14, 1997, options and stock purchase rights, if any, were outstanding for an aggregate of 7,630,000 shares, and (ii) 90,000 shares of Common Stock, net of prior issuances, for issuance to employees pursuant to the Target ESPP. All shares of Target Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, would be duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of Target or any agreement or document to which Target is a party or by which it is bound.

Target Capital Structure. (a) The authorized capital stock of Target ------------------------ consists of 80,000,000 50,000,000 shares of Target Common Stock, $.0001 par value, of which there were 42,803,204 shares issued and outstanding as of the close of business on March 14, 1997 Stock and 2,000,000 shares of Preferred ▇▇▇▇▇Stock, $.▇▇▇▇ .001 par value, value ("Target Preferred Stock"). As of which no shares are issued or outstanding. Since the close of business on March 14November 13, 1997, no shares of Target Capital Stock have been issued except pursuant to the exercise of options outstanding as of March 14, 1997 under the Target Stock Option Plans or pursuant to the Target ESPP. All outstanding : (i) 14,515,265 shares of Target Common Stock were issued and outstanding, all of which are duly authorized, validly issued, fully paid and nonassessable and are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of Target or any agreement or document to which Target is a party or by which it is bound. As of the close of business on March 14, 1997, Target had reserved nonassessable; (iii) an aggregate of 9,760,000 no shares of Target Common Stock, net Stock were held in the treasury of exercises, Target or by Subsidiaries of Target; (iii) 3,662,570 shares of Target Common Stock were reserved for issuance under the Target Employee Option Plan, 3,153,814 of which were subject to employees, consultants outstanding options and non-employee directors 508,756 shares of which were reserved for future option grants; (iv) 291,194 shares of Target Common Stock were reserved for issuance pursuant to the Target Individual Options; (v) 200,000 shares of Target Common Stock were reserved for issuance under the Target Director Option PlansPlan, 60,000 shares of which were subject to outstanding options; (vi) 327,579 shares of Target Common Stock were reserved for future issuance under whichthe Target Purchase Plan, as (vii) 96,385 shares of Target Common Stock were reserved for future issuance under the close Target Incentive Plan and (viii) no shares of business on March 14Target Preferred Stock were outstanding. No change in such capitalization has occurred between November 13, 1997, 1997 and the date of this Agreement other than the exercise and termination of outstanding stock options and stock purchase rights, if any, were outstanding for an aggregate the accrual of 7,630,000 shares, and (ii) 90,000 shares of Common Stock, net of prior issuances, for issuance to employees pursuant to rights under the Target ESPPPurchase Plan. All shares of Target Common Stock subject to issuance as aforesaidspecified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, would shall be duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights created by statutenonassessable. There are no obligations, the Certificate of Incorporation contingent or Bylaws otherwise, of Target or any agreement of its Subsidiaries to repurchase, redeem or document otherwise acquire any shares of Target Common Stock or the capital stock or other equity securities of any Target Subsidiary or provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary or any other entity other than guarantees of bank obligations of such Subsidiaries entered into in the ordinary course of business. All of the outstanding shares of capital stock and all other outstanding equity securities of each of Target's Subsidiaries are duly authorized, validly issued, fully paid and nonassessable, and all such shares and other equity securities (other than directors' qualifying shares in the case of foreign Subsidiaries) are owned by Target or another Target Subsidiary free and clear of all security interests, liens, claims, pledges, agreements, limitations on Target's voting rights, charges or other encumbrances of any nature, except as imposed by law, rule or regulation. (b) Except as set forth in this Section 3.2 or as reserved for future grants of options or rights under the Target Employee Option Plan, the Target Individual Options, the Target Director Option Plan, the Target Incentive Plan or the Target Purchase Plan, and except for Target Common Stock issued subsequent to November 13, 1997, there are no equity securities of any class of Target or any of its Subsidiaries, or any security exchangeable or convertible into such equity securities, issued, reserved for issuance or outstanding. Except as set forth in this Section 3.2, and except for: (i) options to purchase shares of Target Common Stock granted pursuant to Section 5.1(e); (ii) rights to purchase Target Common Stock outstanding under the Target Purchase Plan and the Target Individual Options; (iii) rights under the Target Incentive Plan; and (iv) rights of acceleration or early vesting or termination of repurchase options under (A) option agreements executed in connection with the Target Employee Option Plan, (B) the Target Director Option Plan, (C) the Target Incentive Plan or (D) stock purchase agreements under Target's 1993 and 1994 Purchase Plans (the "Target SPAs"), there are no options, warrants, calls, rights or contracts of any character to which Target or any of its Subsidiaries is a party or by which it is boundbound obligating Target or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold (excluding, in each case, upon exchange or conversion of an equity security), additional shares of capital stock of Target or any of its Subsidiaries or obligating Target or any of its Subsidiaries to grant, extend, accelerate the vesting of or enter into any such option, warrant, call, right or contract. To the knowledge of Target, there are no voting trusts, proxies or other agreements or understandings with respect to the shares of capital stock of Target, except as contemplated in connection with this Agreement.

Target Capital Structure. (a) The authorized capital stock of Target ------------------------ consists of 80,000,000 Twenty Million (20,000,000) shares of Common Stock, $.0001 0.002 par valuevalue ("Target Common Stock"), of which there were 42,803,204 shares issued and outstanding as of the close of business on March 14, 1997 and 2,000,000 Five Million (5,000,000) shares of Preferred ▇▇▇▇▇Stock, $.▇▇▇▇ no par valuevalue ("Target Preferred Stock"). On September 10, 2003: (i) 2,538,316 shares of Target Common Stock were outstanding, all of which were validly issued, fully paid, and nonassessable, (ii) No shares of Target Common Stock were held in the treasury of Target, (iii) 347,720 shares of Target Common Stock were reserved for future issuance pursuant to stock options granted and outstanding or available for grant under the May 4, 1995 Incentive Stock Option Plan and other Target Option Plans, and (iv) an aggregate of no shares are issued or outstandingof Target Common Stock were reserved for future issuance pursuant to granted and outstanding Target Non-Plan Options. Since the close of business on March 14June 30, 19972003, no shares of Target Capital Common Stock have been issued except pursuant to the exercise of options outstanding as of March 14, 1997 granted under the Target Stock Option Plans or pursuant Plans, nor has Target become obligated to the Target ESPP. All outstanding issue any additional shares of Target Common Stock other than pursuant to additional grants of options under the Target Option Plans, each of which grants has been made in the ordinary course of Target's business and in accordance with existing policies. None of the shares of Target Preferred Stock are duly authorizedissued and outstanding and Target is not obligated to issue any such shares. There are no obligations, validly contingent or otherwise, of Target to repurchase, redeem, or otherwise acquire any shares of Target Common Stock or to provide funds to or make any investment (in the form of a loan, capital contribution, or otherwise) in any other entity. (b) Except as set forth in this Section 3.02, there are no: (i) equity securities of any class of Target, or any security exchangeable into or exercisable for such equity securities issued, fully paid and nonassessable and are not subject to preemptive rights created by statutereserved for issuance, the Certificate or outstanding, (ii) options, warrants, equity securities, calls, rights, commitments, or agreements of Incorporation or Bylaws of Target or any agreement or document character to which Target is a party or by which it is bound. As bound obligating Target to issue, deliver, or sell, or cause to be issued, delivered, or sold, additional shares of capital stock of Target or obligating Target, to grant, extend, accelerate the close of business on March 14vesting of, 1997or enter into any such option, Target had reserved warrant, equity security, call, right, commitment, or agreement ((i) an aggregate of 9,760,000 shares of Target Common Stock, net of exercises, for issuance to employees, consultants and non-employee directors pursuant to the Target Stock Option Plans, under which, as of the close of business on March 14, 1997, options and stock purchase rights, if any, were outstanding for an aggregate of 7,630,000 shares, and (ii) 90,000 collectively, "Target Stock Rights"). Target is not a party to, nor is Target aware of, any voting agreement, voting trust, proxy, or other agreements or understandings with respect to the shares of Common Stock, net of prior issuances, for issuance to employees pursuant to the Target ESPP. All shares of Target Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, would be duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws capital stock of Target or any agreement agreement, arrangement, or document understanding providing for registration rights with respect to which Target is a party or by which it is boundany shares of capital stock of Target, other than the Lockup and Voting Agreements.