Common use of Target Capital Structure Clause in Contracts

Target Capital Structure. (a) The authorized capital stock of Target consists of 50,000,000 shares of Target Common Stock and 1,250,000 shares of Preferred Stock, of which 160,000 shares are designated as Series A Preferred Stock, of which 89,200 shares are designated as Series B Preferred Stock, of which 200,000 shares are designated as Series C Preferred Stock and of which 750,000 shares are designated as Series D Preferred Stock. As of the date of this Agreement, there are (i) 1,087,700 shares of Target Common Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable and none of which are subject to repurchase rights; (ii) 122,220 shares of Series A Preferred Stock issued and outstanding, each share of which is convertible into 95.238096 shares of Target Common Stock, 89,200 shares of Series B Preferred Stock issued and outstanding, each share of which is convertible into 25 shares of Target Common Stock, 200,000 shares of Series C Preferred Stock issued and outstanding, each share of which is convertible into 10 shares of Target Common Stock, and 732,158 shares of Series D Preferred Stock issued and outstanding, each share of which is convertible into 10 shares of Target Common Stock, all of which are validly issued, fully paid and nonassessable; (iii) 23,191,580 shares of Target Common Stock reserved for future issuance upon conversion of the Target Preferred Stock; (iv) warrants to purchase an aggregate of 2,520,894 shares of Target Common Stock, 2,793 shares of Series A Preferred Stock, and 1,464 shares of Series D Preferred Stock; and (v) 2,049,015 shares of Target Common Stock reserved for future issuance pursuant to Target Options granted and outstanding as of the date of this Agreement under the Target 1998 Amended and Restated Stock Option Plan (the "Target Stock Option Plan"). The issued and outstanding shares of Target Common Stock and of Target Preferred Stock are held of record by the stockholders of Target as set forth and identified on Schedule 3.2(a) of the Target Disclosure Schedule. The issued and outstanding Target Options are held of record by the option holders identified on, in the amounts, with exercise prices and subject to the vesting schedules set forth on, Schedule 3.2(a) of the Target Disclosure Schedule. The issued and outstanding Target Warrants are held of record by the warrant holders as set forth and identified on Schedule 3.2(a) of the Target Disclosure Schedule. All shares of Target Stock subject to issuance as specified above, upon issuance on the terms and conditions (including payment) specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. All shares of Target Common Stock subject to issuance upon the exercise of Target Options and Target Warrants, upon issuance on the terms and conditions (including payment) specified in the instrument pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. All outstanding shares of Target Common Stock, Target Preferred Stock and outstanding Target Options and Target Warrants (collectively "Target Securities") were issued in compliance with applicable federal and state securities laws. The Target Stock Option Plan has been duly qualified in the state of Washington and such other states where a holder of a Target Option resides. There are no obligations, contingent or otherwise, of Target to repurchase, redeem or otherwise acquire any shares of Target Stock or make any investment (in the form of a loan, capital contribution or otherwise) in any other entity. An updated Schedule 3.2(a) reflecting changes permitted by this Agreement in the capitalization of Target between the date hereof and the Effective Time shall be delivered by Target to Acquiror on the Closing Date. (b) Except as set forth in this Section 3.2, there are no equity securities of any class or series of Target, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding. Except as disclosed in Schedule 3.2, there are no options, warrants, equity securities, calls, rights, commitments, understandings or agreements of any character to which Target is a party or by which it is 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 vesting of or enter into any such option, warrant, equity security, call, right, commitment or agreement. Except as set forth on Schedule 3.2(b) of the Target Disclosure Schedule, Target is not in active discussion, formal or informal, with any person or entity regarding the issuance of any form of additional Target equity that has not been issued or committed to prior to the date of this Agreement. Except as provided in this Agreement and the other Transaction Documents (as defined in Section 3.3(a)) or any transaction contemplated hereby or thereby, to Target's knowledge, there are no voting trusts, proxies or other agreements or understandings with respect to the voting of the shares of capital stock of Target. (c) Except as set forth on Schedule 3.2(c) of the Target Disclosure Schedule, all Target Options and Restricted Target Stock have been issued in accordance with the terms of the Target Option Plan and pursuant to the standard forms of option agreement or stock purchase agreement, as the case may be, previously provided to Acquiror or its representatives. Except as disclosed on Schedule 3.2(a) of the Target Disclosure Schedule and for such adjustments as are contemplated by Section 6.4, no Target Option or Restricted Target Stock will by its terms require an adjustment in connection with the Merger. Except as set forth on Schedule 3.2(c) of the Target Disclosure Schedule, neither the consummation of transactions contemplated by this Agreement or the other Transaction Documents, nor any action taken or to be taken by Target in connection with such transactions will result in (i) any acceleration of vesting in favor of any optionee under any Target Option or Restricted Target Stock; (ii) any additional benefits for any optionee under any Target Option or Restricted Target Stock; or (iii) the inability of Acquiror after the Effective Time to exercise any right or benefit held by Target prior to the Effective Time with respect to any Target Option or Restricted Target Stock assumed by Acquiror, including, without limitation, the right to repurchase an optionee's unvested shares on termination of such optionee's employment.

Target Capital Structure. (a) The authorized capital stock of Target consists of 50,000,000 43,000,000 shares of Target Common Stock and 1,250,000 17,500,000 shares of Preferred Stock, of which 160,000 1,620,000 shares are designated as Series A Preferred Stock, of which 89,200 3,600,000 shares are designated as Series B Preferred Stock, of which 200,000 7,280,811 shares are designated as Series C Preferred Stock and of which 750,000 4,655,000 shares are designated as Series D Preferred Stock. As of the date of this Agreement, there are (i) 1,087,700 16,252,601 shares of Target Common Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable and none 7,574,369 of which are subject to repurchase rights; , (ii) 122,220 1,620,000 shares of Series A Preferred Stock issued and outstanding, each share of which is convertible into 95.238096 shares of Target Common Stock, 89,200 shares of Series B Preferred Stock issued and outstanding, each share of which is convertible into 25 shares of Target Common Stock, 200,000 shares of Series C Preferred Stock issued and outstanding, each share of which is convertible into 10 shares of Target Common Stock, and 732,158 shares of Series D Preferred Stock issued and outstanding, each share of which is convertible into 10 shares of Target Common Stock, all of which are validly issued, fully paid and nonassessable; , and each share of which is convertible into one share of Target Common Stock, (iii) 23,191,580 3,556,772 shares of Series B Preferred Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable, and each share of which is convertible into one share of Target Common Stock, (iv) 7,280,811 shares of Series C Preferred Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable, and each share of which is convertible into one share of Target Common Stock, (v) 4,519,133 shares of Series D Preferred Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable, and each share of which is convertible into one share of Target Common Stock, (vi) warrants to purchase up to 8,330 shares of Series B Preferred Stock (the "Series B Warrants"), (vii) warrants to purchase up to 100,000 shares of Series D Preferred Stock (collectively with the Series B Warrants, the "Target Warrants"); (viii) 16,976,716 shares of Target Common Stock reserved for future issuance upon conversion of the Target Preferred Stock; (ivix) warrants to purchase an aggregate of 2,520,894 shares of Target Common Stock, 2,793 shares of Series A Preferred Stock, and 1,464 shares of Series D Preferred Stock; and (v) 2,049,015 1,951,110 shares of Target Common Stock reserved for future issuance pursuant to Target Options granted and outstanding as of the date of this Agreement under the Target 1998 Amended and Restated Stock Option Plan (the "Target Stock Option Plan"). The issued and outstanding ; (x) no shares of Target Common Stock reserved for future issuance pursuant to Target Options granted and of Target Preferred Stock are held of record by the stockholders of Target outstanding as set forth and identified on Schedule 3.2(a) of the Target Disclosure Schedule. The issued and outstanding Target Options are held date of record by the option holders identified on, in the amounts, with exercise prices and subject to the vesting schedules set forth on, Schedule 3.2(a) of this Agreement under the Target Disclosure Schedule. The issued 2000 Stock Option Plan; and outstanding Target Warrants are held of record by the warrant holders as set forth and identified on Schedule 3.2(a(xi) of the Target Disclosure Schedule. All shares of Target Stock subject to issuance as specified above, upon issuance on the terms and conditions (including payment) specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. All 932,625 shares of Target Common Stock subject reserved for future issuance pursuant to issuance upon the exercise of Target Options and Target Warrants, upon issuance on the terms and conditions (including payment) specified in the instrument pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. All outstanding shares of Target Common Stock, Target Preferred Stock granted and outstanding Target Options and Target Warrants (collectively "Target Securities") were issued in compliance with applicable federal and state securities laws. The Target Stock Option Plan has been duly qualified in the state as of Washington and such other states where a holder of a Target Option resides. There are no obligations, contingent or otherwise, of Target to repurchase, redeem or otherwise acquire any shares of Target Stock or make any investment (in the form of a loan, capital contribution or otherwise) in any other entity. An updated Schedule 3.2(a) reflecting changes permitted by this Agreement in the capitalization of Target between the date hereof and the Effective Time shall be delivered by Target to Acquiror on the Closing Date. (b) Except as set forth in this Section 3.2, there are no equity securities of any class or series of Target, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding. Except as disclosed in Schedule 3.2, there are no options, warrants, equity securities, calls, rights, commitments, understandings or agreements of any character to which Target is a party or by which it is 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 vesting of or enter into any such option, warrant, equity security, call, right, commitment or agreement. Except as set forth on Schedule 3.2(b) of the Target Disclosure Schedule, Target is not in active discussion, formal or informal, with any person or entity regarding the issuance of any form of additional Target equity that has not been issued or committed to prior to the date of this AgreementAgreement under the ONElist Stock Option Plan. Except as provided in this Agreement and the other Transaction Documents (as defined in Section 3.3(a)) or any transaction contemplated hereby or therebyThe Target 1998 Stock Option Plan, to Target's knowledge, there are no voting trusts, proxies or other agreements or understandings with respect to the voting of the shares of capital stock of Target. (c) Except as set forth on Schedule 3.2(c) of the Target Disclosure Schedule, all Target Options and Restricted Target 2000 Stock have been issued in accordance with the terms of the Target Option Plan and pursuant the ONElist Stock Option Plan are collectively referred to the standard forms of option agreement or stock purchase agreement, herein as the case may be, previously provided to Acquiror or its representatives. Except as disclosed on Schedule 3.2(a) of the Target Disclosure Schedule and for such adjustments as are contemplated by Section 6.4, no Target Option or Restricted "Target Stock will by its terms require an adjustment in connection with the Merger. Except as set forth on Schedule 3.2(c) of the Target Disclosure Schedule, neither the consummation of transactions contemplated by this Agreement or the other Transaction Documents, nor any action taken or to be taken by Target in connection with such transactions will result in (i) any acceleration of vesting in favor of any optionee under any Target Option or Restricted Target Stock; (ii) any additional benefits for any optionee under any Target Option or Restricted Target Stock; or (iii) the inability of Acquiror after the Effective Time to exercise any right or benefit held by Target prior to the Effective Time with respect to any Target Option or Restricted Target Stock assumed by Acquiror, including, without limitation, the right to repurchase an optionee's unvested shares on termination of such optionee's employment.Option

Target Capital Structure. (a) The authorized capital stock of Target consists of 50,000,000 shares of Target Common Stock, 24,000,000 shares of Target non-voting Common Stock and 1,250,000 10,000,000 shares of Target Preferred Stock, of which 160,000 250,000 shares are designated as Series A Preferred Stock, of which 89,200 450,000 shares are designated as Series B Preferred Stock, of which 200,000 2,000,000 shares are designated as Series C Preferred Stock and of which 750,000 Stock, 2,200,000 shares are designated as Series D Preferred Stock, 4,400,000 shares are designated as Series E Preferred Stock and 325,000 shares are designated as Series F Preferred Stock. As of the date of this Agreement, there are are: (i) 1,087,700 942,032 shares of Target Common Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable and none 37,266 of which are subject to repurchase rightsrights under the Target Stock Plan or related agreements as described in the Target Disclosure Schedule; no shares of Target non-voting Common Stock issued or outstanding; (ii) 122,220 250,000 shares of Series A Preferred Stock issued and outstanding, each share of which is convertible into 95.238096 shares of Target Common Stock, 89,200 333,331 shares of Series B Preferred Stock issued and outstanding, each share of which is convertible into 25 shares of Target Common Stock, 200,000 1,502,236 shares of Series C Preferred Stock issued and outstanding, each share of which is convertible into 10 shares of Target Common Stock, and 732,158 1,540,449 shares of Series D Preferred Stock issued and outstanding, each share of which is convertible into 10 855,566 shares of Target Common StockSeries E Preferred Stock issued and outstanding, and 40,322 shares of Series F Preferred Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable, and all of which are convertible into Target Common Stock on a one share for one share basis; (iii) 23,191,580 4,408,360 shares of Target Common Stock reserved for future issuance upon conversion of the Target Preferred Stock; (iv) warrants to purchase an aggregate of 2,520,894 shares of Target Common Stock, 2,793 shares of Series A Preferred Stock, and 1,464 shares of Series D Preferred Stock; and (v) 2,049,015 412,249 shares of Target Common Stock reserved for future issuance pursuant to Target Options granted and outstanding as of the date of this Agreement under the Target 1998 Amended Stock Plan; (v) 92,500 shares of Target Common Stock reserved for future issuance pursuant to Target Options granted and Restated Stock Option Plan (outstanding outside of the "Target Stock Option Plan and (vi) 265,802 shares of Target Common Stock available and reserved for issuance upon exercise of options or pursuant to awards to be granted in the future under the Target Stock Plan"). The issued and outstanding shares of Target Common Stock and of Target Preferred Stock are held of record by the stockholders of Target as set forth and identified on in the stockholder list attached as Schedule 3.2(a) of to the Target Disclosure Schedule. The issued and outstanding Target Options are held of record by the option holders identified on, in the amounts, with exercise prices and subject to the vesting schedules as set forth on, and identified on Schedule 3.2(a) of the Target Disclosure Schedule). The issued and outstanding warrants to acquire Target Warrants Common Stock and Target Preferred Stock are held of record by the warrant holders warrantholder as set forth and identified on Schedule 3.2(a) of (the “Target Disclosure ScheduleWarrants”). All shares of Target Common Stock and Target Preferred Stock subject to issuance as specified above, upon issuance on the terms and conditions (including payment) specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. All shares of Target Common Stock subject to issuance issuable upon the exercise of Target Options and Target WarrantsOptions, upon issuance on the terms and conditions (including payment) specified in the instrument pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. Except as otherwise set forth in Schedule 3.2(a), none of the issued and outstanding shares of Target Common Stock are subject to contractual rights to repurchase upon the termination of the employment or consulting services of the holder thereof with Target or its affiliates. All outstanding shares of Target Common Stock, Stock and Target Preferred Stock and outstanding Target Options and Target Warrants (collectively "“Target Securities"”) were issued in compliance with applicable federal and state securities laws. The Except for the redemption rights of the Target Preferred Stock Option Plan has been duly qualified provided for in the state Certificate of Washington and such other states where a holder of a Target Option resides. There Incorporation, there are no obligations, contingent or otherwise, of Target to repurchase, redeem or otherwise acquire any shares of Target Common Stock or Target Preferred Stock or make any investment (in the form of a loan, capital contribution or otherwise) in any other entity. An updated Schedule 3.2(a) reflecting changes changes, if any, permitted by this Agreement in the capitalization of Target between the date hereof and the Effective Time shall be delivered by Target to Acquiror on the Closing Date. (b) Except as set forth in this Section 3.2, there are no equity securities of any class or series of Target, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding. Except as disclosed set forth in Schedule this Section 3.2, there are no options, warrants, equity securities, calls, rights, commitments, understandings commitments or agreements of any character to which Target is a party or by which it is bound obligating Target to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of Target or (except as set forth in the stock restriction agreements, stock option agreements and the Investor Rights Agreements listed in Schedule 3.2) obligating Target to grant, extend, accelerate the vesting of or enter into any such option, warrant, equity security, call, right, commitment or agreement. Except as set forth on Schedule 3.2(b) of the Target Disclosure Schedule, Target is not in active discussion, formal or informal, with any person or entity regarding the issuance of any form of additional Target equity that has not been issued or committed to prior to the date of this Agreement. Except as provided in this Agreement and the other Transaction Documents (as defined in Section 3.3(a)) or any transaction contemplated hereby or thereby, to Target's knowledge, there are no voting trusts, proxies or other agreements or understandings with respect to the voting of the shares of capital stock of Target. (c) Except Other than as set forth on Schedule 3.2(c) of the Target Disclosure Schedule3.2(a), all Target Options and Restricted Target Stock have been issued in accordance with the terms of the Target Option Stock Plan and pursuant to the standard forms of option agreement or stock purchase agreement, as the case may be, previously provided to Acquiror or its representatives. Except as disclosed on Schedule 3.2(a) of the Target Disclosure Schedule and for such adjustments as are contemplated by Section 6.4, no Target Option or Restricted Target Stock will by its terms require an adjustment in connection with the Merger. Except as set forth on in Schedule 3.2(c) of the Target Disclosure Schedule3.2, neither the consummation of transactions contemplated by this Agreement or the other Transaction Documents, Documents nor any action taken or to be taken by Target in connection with such transactions will result in (i) any acceleration of vesting in favor of any optionee under any Target Option or Restricted Target StockOption; (ii) any acceleration of vesting in favor of any stockholder under the Target Stock Plan whose shares are subject to a right of repurchase on behalf of the Target; (iii) any additional benefits for any optionee under any Target Option or Restricted Target StockOption; or (iiiiv) the inability of Acquiror or Target after the Effective Time to exercise any right or benefit held by Target prior to the Effective Time with respect to any Target Option assumed by Acquiror or Restricted any stock awards under the Target Stock assumed by AcquirorPlan, including, without limitation, the right to repurchase an optionee's ’s or stockholder’s unvested shares on termination of such optionee's ’s or stockholder’s employment. The assumption by Acquiror of Target Options in accordance with Section 6.5 hereunder will not (i) give the optionees additional benefits which they did not have under their options prior to such assumption (after taking into account the existing provisions of the options, such as their respective exercise prices and vesting schedules and after taking into account the terms of this Agreement) and (ii) constitute a breach of the Target Stock Plan or any agreement entered into pursuant to such plan.