Common use of 2Capitalization Clause in Contracts

2Capitalization. (a) The authorized capital stock of the Company consists of 33,333,333 shares of Company Common Stock. The Company Common Stock is entitled to the rights and privileges set forth in the Company’s certificate of incorporation. As of the Capitalization Date, 13,256,570 shares of Company Common Stock were issued and outstanding (not including shares held in treasury), (ii) 0 shares of Company Common Stock were held in treasury, (iii) 877,503 shares of Company Common Stock were underlying outstanding Company Stock Options and the Company Stock Options had a weighted average exercise price of $1.86, (iv) 682,250 shares of Company Common Stock were underlying outstanding Company RSUs; (v) 77,779 shares of Company Common Stock were underlying the A▇▇▇▇▇▇ Warrant, which has an exercise price of $3.03; and (vi) 524,170 shares of Company Common Stock were underlying the H▇▇▇▇▇ Warrant, which has an exercise price of $2.38. (b) The Company has made available to the Parent complete and accurate (i) copies of all Company Stock Plans and details regarding the number of shares of Company Common Stock reserved for future issuance under such Company Stock Plan, (ii) forms of stock option agreements evidencing Company Stock Options, (iii) forms of agreements evidencing Company RSUs, (iv) agreements evidencing the Warrants, and (v) forms of agreements evidencing any other equity or equity-linked award or compensation arrangement. Section 2.2(b)(i) of the Company Disclosure Schedule sets forth, for each Company Stock Option, each Company RSU and each Warrant, (A) the name of the holder thereof, (B) the date of grant thereof, (C) the number of shares of Company Common Stock issuable upon exercise thereof, and (D) the exercise price of such Company Stock Option, Company RSU or Warrant. (c) Except (i) as set forth in Section 0(a) and for changes since the Capitalization Date resulting from the exercise or settlement of Company Stock Options, Company RSUs or Warrants outstanding on such date in accordance with their respective terms and (ii) as reserved for future grants under Company Stock Plans as of the date of this Agreement permitted under Section 4.1(i), (A) there are no equity securities of any class of the Company, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (B) there are no options, warrants, equity securities, calls, rights, commitments or agreements to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound obligating the Company or any of its Subsidiaries to issue, exchange, transfer, deliver or sell, or cause to be issued, exchanged, transferred, delivered or sold, additional shares of capital stock or other equity interests of the Company or any security or rights convertible into or exchangeable or exercisable for any such shares or other equity interests, or obligating the Company or any of its Subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. The Company does not have any outstanding stock appreciation rights, phantom stock, performance based rights or similar rights or obligations. None of the Company, any of its Subsidiaries or any of its Affiliates is a party to or is bound by any agreement with respect to the voting (including proxies) or sale or transfer of any shares of capital stock or other equity interests of the Company. Except to the extent arising pursuant to applicable state takeover or similar laws, and except as set forth in Section 2.2(c) of the Company Disclosure Schedule, there are no registration rights, and there is no rights agreement, “poison pill” anti-takeover plan or other similar agreement to which the Company or any of its Subsidiaries is a party or by which it or they are bound with respect to any equity security of any class of the Company. (d) All outstanding shares of Company Common Stock are, and all shares of Company Common Stock subject to issuance as specified in Section 2.2(b) above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or 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 Company’s certificate of incorporation or bylaws or any agreement to which the Company is a party or is otherwise bound. (e) There are no obligations, contingent or otherwise, of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire, or to register, any shares of Company Common Stock or the capital stock of the Company or any of its Subsidiaries.

2Capitalization. (a) The authorized capital stock of the Company consists of 33,333,333 300,000 shares of voting common stock, par value $0.10 per share, and 3,000 shares of non-voting common stock, par value $0.10 per share (the “Company Non-Voting Common Stock. The Company Common Stock is entitled to the rights and privileges set forth in the Company’s certificate of incorporation”). As of the Capitalization Datedate of this Agreement, 13,256,570 there are 128,277 shares of voting common stock of the Company issued and outstanding, and no shares of Company Non-Voting Common Stock are issued and outstanding. As of the date of this Agreement, there are (i) 11,689 shares of Company Common Stock were issued and outstanding (not including shares held in treasury), (ii) 0 shares of Company Common Stock were held in treasury, (iiiii) 877,503 5,855 shares of Company Common Stock were underlying outstanding Company Stock Options and the Company Stock Options had a weighted average exercise price of $1.86, (iv) 682,250 shares of Company Common Stock were underlying outstanding Company RSUs; (v) 77,779 shares of Company Common Stock were underlying the A▇▇▇▇▇▇ Warrant, which has an exercise price of $3.03; and (vi) 524,170 shares of Company Common Stock were underlying the H▇▇▇▇▇ Warrant, which has an exercise price of $2.38. (b) The Company has made available to the Parent complete and accurate (i) copies of all Company Stock Plans and details regarding the number of shares of Company Non-Voting Common Stock reserved for future issuance under such Company Stock Plan, (ii) forms upon the exercise of stock option agreements evidencing outstanding Company Stock Options, (iii) forms of agreements evidencing Company RSUs, and (iv) agreements evidencing the Warrants, and (v) forms of agreements evidencing any other equity or equity-linked award or compensation arrangement. Section 2.2(b)(i) of the Company Disclosure Schedule sets forth, for each Company Stock Option, each Company RSU and each Warrant, (A) the name of the holder thereof, (B) the date of grant thereof, (C) the number of shares of Company Common Stock issuable upon exercise thereof, and (D) the exercise price of such Company Stock Option, Company RSU or Warrant. (c) Except (i) than as set forth in Section 0(a) and for changes since the Capitalization Date resulting from the exercise above, no other shares of capital stock or settlement other voting securities of Company Stock Options, Company RSUs or Warrants outstanding on such date in accordance with their respective terms and (ii) as reserved for future grants under Company Stock Plans as of the date of this Agreement permitted under Section 4.1(i), (A) there are no equity securities of any class of the Company, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding. All of the issued and outstanding shares of Company Common Stock have been duly authorized and (B) there validly issued and are fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof. There are no optionsbonds, warrantsdebentures, equity securities, calls, rights, commitments notes or agreements other indebtedness that have the right to vote on any matters on which the shareholders of Company or any of its Subsidiaries may vote. No Company Benefit Plan that is a party or by which the Company or any of its Subsidiaries is bound obligating the Company or any of its Subsidiaries to issue, exchange, transfer, deliver or sell, or cause intended to be issued, exchanged, transferred, delivered or sold, additional shares of capital stock or other equity interests qualified under Section 401(a) of the Code owns or holds Company or any security or rights convertible into or exchangeable or exercisable for any such shares or other equity interests, or obligating the Company or any of its Subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreementCommon Stock. The Company does not have any outstanding stock appreciation rights, phantom stock, performance based rights or similar rights or obligations. None of the Company, any of its Subsidiaries or any of its Affiliates is a party to or is bound by any agreement with respect to the voting (including proxies) or sale or transfer of any shares of capital stock or other equity interests of the Company. Except to the extent arising pursuant to applicable state takeover or similar laws, and except Other than as set forth in on Section 2.2(c) 6.18 of the Company Disclosure Schedule, there are no registration trust preferred or subordinated debt securities of Company that are issued or outstanding. Other than Company Stock Options issued prior to the date of this Agreement, as of the date of this Agreement (i) there are no outstanding subscriptions, options, warrants, puts, calls, rights, and there is no rights agreement, “poison pill” anti-takeover plan exchangeable or convertible securities or other similar agreement commitments or agreements obligating Company to which the Company or any of its Subsidiaries is a party or by which it or they are bound with respect to any equity security of any class of the Company. (d) All outstanding shares of Company Common Stock areissue, and all shares of Company Common Stock subject to issuance as specified in Section 2.2(b) abovetransfer, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuablesell, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or 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 Company’s certificate of incorporation or bylaws or any agreement to which the Company is a party or is otherwise bound. (e) There are no obligations, contingent or otherwise, of the Company or any of its Subsidiaries to repurchasepurchase, redeem or otherwise acquire, any such securities and (ii) except for the Executive Stock ​ ​ ​ Appreciation Plan adopted by the Company effective as of January 1, 2016 and renewed by the Company from time to time, together with the corresponding agreements with respect to such plan (“Company ESAP”), there are no contingent value rights, “phantom” stock or to registersimilar securities or rights that are derivative of, any shares or provide economic benefits based, directly or indirectly, on the value of or price of, Company Common Stock or other equity interests of the Company. Section 3.2(a) of the Company Disclosure Schedule sets forth a true, correct and complete list of participants in the Company ESAP as of December 31, 2021. There are no voting trusts, shareholder agreements, proxies or other agreements in effect with respect to the voting or transfer of the Company Common Stock or other equity interests of Company, other than the Voting and Support Agreements. All grants of Company Stock Options were validly issued and properly approved by the Board of Directors of the Company (or a committee thereof) in accordance with the applicable Company Stock Plan and applicable law, in each case in all material respects. All Company Stock Options have been granted having a per share exercise price at least equal to the fair market value of the underlying Company Common Stock on the date such Company Stock Option was granted, and have not otherwise been modified within the meaning of Section 409A of the Code and associated Treasury Department guidance. Section 3.2(a) of the Company Disclosure Schedule sets forth a true, correct and complete list of all Company Stock Options outstanding as of the date hereof specifying, on a holder-by-holder basis, (A) the name of each holder, (B) the class and number of shares subject to each such Company Stock Option, (C) the grant date of each such Company Stock Option, (D) the Company Stock Plan under which such Company Stock Option was granted, (E) the exercise price for each Company Stock Option, and (F) the expiration date for each Company Stock Option. Other than the Company Stock Options and the Company ESAP, no equity-based awards (including any cash awards where the amount of payment is determined in whole or in part based on the price of any capital stock of the Company or any of its Subsidiaries) are outstanding. (b) Except as set forth on Section 3.2(b) of the Company Disclosure Schedules, Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the Company Subsidiaries, free and clear of any liens, pledges, charges, encumbrances and security interests whatsoever (“Liens”), and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable (except, with respect to bank Subsidiaries, as provided under 12 U.S.C. §55 or any comparable provision of applicable state law) and free of preemptive rights, with no personal liability attaching to the ownership thereof. No Company Subsidiary is bound by any outstanding subscriptions, options, warrants, calls, rights, commitments or agreements of any character calling for the purchase or issuance of any shares of capital stock or any other equity security of such Subsidiary or any securities representing the right to purchase or otherwise receive any shares of capital stock or any other equity security of such Subsidiary.

2Capitalization. (a) The authorized capital stock of the Company consists of 33,333,333 25,000,000 shares of Company Common Stock. The Company Common , 2,800,000 shares of Capital Stock is entitled to the rights and privileges set forth in the Company’s certificate 10,000,000 shares of incorporationPreferred Stock, par value $.01 per share ("Preferred Stock"). As of the Capitalization Datedate hereof, 13,256,570 (i) 11,081,043 shares of Company Common Stock were are issued and outstanding (not including shares held in treasury)outstanding, (ii) 0 427,186 shares of Company Common Stock were are issued and held in treasurythe treasury of the Company, (iii) 877,503 450,000 shares of Company Common Capital Stock were underlying outstanding Company Stock Options are issued and the Company Stock Options had a weighted average exercise price of $1.86outstanding, (iv) 682,250 no shares of Company Common Capital Stock were underlying outstanding Company RSUs; are issued and held in the treasury of the Company, (v) 77,779 no shares of Company Common Preferred Stock were underlying the A▇▇▇▇▇▇ Warrantare issued, which has an exercise price of $3.03; and (vi) 524,170 950,000 shares of Company Common Stock were underlying are reserved for issuance upon conversion of Capital Stock issued or issuable upon exercise of Company Options, (vii) 3,094,767 shares of Common Stock are reserved for issuance upon exercise of outstanding Company Options, (viii) 0 shares of Common Stock are reserved for issuance upon the exercise of options authorized but not granted under the Option Plan, (ix) 500,000 shares of Capital Stock are reserved for issuance upon exercise of Company Options, (x) 63,321 shares of Common Stock are reserved for issuance upon exercise of warrants (the "Company Warrants") and (xi) 10,000 shares of Series A Junior Participating Preferred Stock are reserved for issuance upon exercise of the rights to purchase Preferred Stock (the "Company Rights") pursuant to the Rights Agreement between the Company (then known as National Patent Development Corporation) and H▇▇▇▇▇ WarrantTrust Company of New York, as Rights Agent, dated as of June 23, 1997 (the "Rights Agreement"). All the outstanding shares of the Company's capital stock are, and all shares which has an exercise price of $2.38. (b) The Company has made available may be issued pursuant to the Parent complete and accurate (i) copies exercise of all outstanding Company Stock Plans and details regarding the number of shares of Company Common Stock reserved for future issuance under such Company Stock PlanOptions will be, (ii) forms of stock option agreements evidencing Company Stock Options, (iii) forms of agreements evidencing Company RSUs, (iv) agreements evidencing the Warrants, and (v) forms of agreements evidencing any other equity or equity-linked award or compensation arrangement. Section 2.2(b)(i) of the Company Disclosure Schedule sets forth, for each Company Stock Option, each Company RSU and each Warrant, (A) the name of the holder thereof, (B) the date of grant thereof, (C) the number of shares of Company Common Stock issuable upon exercise thereof, and (D) the exercise price of such Company Stock Option, Company RSU or Warrant. (c) Except (i) as set forth in Section 0(a) and for changes since the Capitalization Date resulting from the exercise or settlement of Company Stock Options, Company RSUs or Warrants outstanding on such date when issued in accordance with their the respective terms thereof, duly authorized, validly issued, fully paid and (ii) as reserved for future grants under Company Stock Plans as of the date of this Agreement permitted under Section 4.1(i), (A) there non-assessable. There are no equity bonds, debentures, notes or other indebtedness having general voting rights (or convertible into securities having such rights) ("Voting Debt") of any class of the Company, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (B) there are no options, warrants, equity securities, calls, rights, commitments or agreements to which the Company or any of its Subsidiaries is a party issued and outstanding. Except as set forth above and except for the transactions contemplated by this agreement and the Stockholder Agreement, as of the date hereof, (i) there are no shares of capital stock of the Company authorized, issued or by which outstanding, (ii) there are no existing options (other than the Company Options outstanding on the date hereof), warrants (other than the Company Warrants outstanding on the date hereof), calls, pre-emptive rights, subscriptions or other rights (other than the Company Rights), agreements, arrangements or commitments of any character, relating to the issued or unissued capital stock of the Company or any of its Subsidiaries is bound Subsidiaries, obligating the Company or any of its Subsidiaries to issue, exchange, transfer, deliver transfer or sell, sell or cause to be issued, exchanged, transferred, delivered transferred or sold, additional sold any shares of capital stock or Voting Debt of, or other equity interests of interest in, the Company or any security of its Subsidiaries or rights securities convertible into or exchangeable or exercisable for any such shares or other equity interests, or obligating the Company or any of its Subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend extend or enter into any such option, warrant, equity security, call, subscription or other right, agreement, arrangement or commitment or agreement. The Company does not have any outstanding stock appreciation rights, phantom stock, performance based rights or similar rights or obligations. None of the Company, any of its Subsidiaries or any of its Affiliates is a party to or is bound by any agreement with respect to the voting and (including proxiesiii) or sale or transfer of any shares of capital stock or other equity interests of the Company. Except to the extent arising pursuant to applicable state takeover or similar laws, and except as set forth in Section 2.2(c2.2(a) of the Company Disclosure Schedule, there are no registration rights, and there is no rights agreement, “poison pill” anti-takeover plan or other similar agreement to which the Company or any of its Subsidiaries is a party or by which it or they are bound with respect to any equity security of any class of the Company. (d) All outstanding shares of Company Common Stock are, and all shares of Company Common Stock subject to issuance as specified in Section 2.2(b) above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or 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 Company’s certificate of incorporation or bylaws or any agreement to which the Company is a party or is otherwise bound. (e) There are no obligations, contingent or otherwise, contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquireacquire any Shares, or the capital stock of the Company, or any Subsidiary or affiliate of the Company or to registerprovide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary or any other entity. (b) All of the outstanding shares of capital stock of each of the Subsidiaries are beneficially owned by the Company Common Stock (except as set forth in Section 2.2 of the Company Disclosure Schedule), directly or indirectly, and all such shares have been validly issued and are fully paid and nonassessable and are owned by either the Company or one of its Subsidiaries (except as set forth in Section 2.2 of the Company Disclosure Schedule) free and clear of all liens, charges, claims or encumbrances ("Encumbrances"). (c) Except as set forth in Section 2.2 of the Company Disclosure Schedule, there are no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of the capital stock of the Company or any of its the Subsidiaries.