Common use of Capitalization of the Company and its Subsidiaries Clause in Contracts

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of: 35,000,000 Shares, of which, as of October 15, 1996, 20,959,260 Shares were issued and outstanding, and 5,000,000 shares of preferred stock, par value $0.001 per share (the "Company Preferred Stock"), of which, as of the date hereof, none are issued and outstanding. All of the issued and outstanding Shares have been validly issued, and are fully paid, nonassessable and free of preemptive rights. As of October 15, 1996, 2,782,116 Shares were reserved for issuance and issuable upon or otherwise deliverable in connection with the exercise of outstanding Company Stock Options issued pursuant to the Company Plans, 78,813 Shares were reserved for issuance under the Company's 1991 Employee Stock Purchase Plan (the "ESPP") and 3,345,455 Shares were reserved for issuance pursuant to the conversion of the Company's 5-3/4% Convertible Subordinated Notes due August 15, 2001 (the "Convertible Notes"). The final purchase by participants under the ESPP will occur no later than the business day immediately preceding the Effective Time. The ESPP will terminate at the Effective Time. A total of 35,000 shares of Preferred Stock have been designated as Series A Participating Preferred Stock and reserved for issuance in connection with the exercise of the Rights (as defined in Section 2.20). Except as set forth in Section 2.2(a) of the Company Disclosure Schedule, since October 15, 1996, no shares of the Company's capital stock have been issued other than pursuant to stock options already in existence on October 15, 1996, and no stock options have been granted. Except as set forth above or as set forth in Section 2.2(a) of the Company Disclosure Schedule, as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of the Company, (ii) no securities of the Company or its subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) no options or other rights to acquire from the Company or its subsidiaries, and no obligations of the Company or its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, and (iv) no equity equivalents, interests in the ownership or earnings of the Company or its subsidiaries or other similar rights (including stock appreciation rights) (collectively, "Company Securities"). There are no outstanding obligations of the Company or its subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. Except as set forth in Section 2.2(a) of the Company Disclosure Schedule, there are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or to which it is bound relating to the voting of any shares of capital stock of the Company.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of: 35,000,000 Shares, 20,000,000 shares of which, as of October 15, 1996, 20,959,260 Shares were issued Common Stock and outstanding, and 5,000,000 1,000,000 shares of preferred stock, par value $0.001 .001 per share (the "Company Preferred Stock"). As of June 25, 1998, 5,173,077 --------------- Shares of which, as of the date hereof, none Common Stock are issued and outstanding, no shares of the Preferred Stock are outstanding. All of the issued and outstanding Shares have been validly issued, and are fully paid, nonassessable and free of preemptive rights. As of October 15June 25, 19961998, 2,782,116 a total of 1,016,129 Shares were are reserved for issuance and issuable upon or otherwise deliverable in connection with pursuant to outstanding Stock Options under the exercise of outstanding Company Stock Options issued pursuant to the Company Plans, 78,813 of which (A) 65,321 Shares were are reserved for issuance pursuant to outstanding Stock Options under the Company's 1991 Employee Stock Purchase Plan Option Plan, (the "ESPP"B) and 3,345,455 476,004 Shares were are reserved for issuance pursuant to the conversion of outstanding Stock Options under the Company's 5-3/4% Convertible Subordinated Notes due August 151995 Stock Option Plan, 2001 (the "Convertible Notes"). The final purchase by participants under the ESPP will occur no later than the business day immediately preceding the Effective Time. The ESPP will terminate at the Effective Time. A total of 35,000 shares of Preferred Stock have been designated as Series A Participating Preferred Stock and C) 469,804 Shares are reserved for issuance in connection with pursuant to outstanding Stock Options under the Company's 1997 Stock Option Plan, (D) 5,000 Shares are reserved for issuance pursuant to outstanding Stock Options under the Company's 1997 Director Plan, and (E) assuming that the Option Cancellation Time were to occur on or about June 16, 1998, approximately 6,500 Shares would have been issuable upon the exercise of Purchase Plan Options under the Rights (as defined in Section 2.20)Company's 1996 Employee Stock Purchase Plan at a price of $13.60 per Share. Except as set forth in Section 2.2(a) of the Company Disclosure ScheduleSince June 25, since October 15, 19961998, no shares of the Company's capital stock have been issued other than pursuant to stock options already in existence on October 15, 1996such date, and since June 25, 1998, no stock options have been granted. Except as set forth above or as set forth in Section 2.2(a) of and except for the Company Disclosure ScheduleRights to, as of among other things, purchase Series A Participating Preferred Stock issued pursuant to the date hereofRights Agreement, there are outstanding (i) no shares of capital stock or other voting securities of the Company, (ii) no securities of the Company or any of its subsidiaries Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) no options or other rights to acquire from the Company or any of its subsidiariesSubsidiaries, and no obligations of the Company or any of its subsidiaries Subsidiaries to issue, any capital stock, voting securities securi- ties or securities convertible into or exchangeable for capital stock or voting securities of the Company, and (iv) no equity equivalents, interests in the ownership or earnings of the Company or any of its subsidiaries Subsidiaries or other similar rights (including stock appreciation rights) (collectively, "Company Securities"). There are no outstanding ------------------ obligations of the Company or any of its subsidiaries Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. Except as set forth in Section 2.2(a) of the Company Disclosure Schedule, there are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or to which it is bound relating to the voting of any shares of capital stock of the Company.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of: (i) 35,000,000 Sharesshares of Common Stock, par value $1.00 per share, of which, as of October 15August 5, 19961998, 20,959,260 Shares 14,718,508 shares were issued and outstanding, and 5,000,000 (ii) (x) 1,878,870 shares of preferred stockSeries B Preference Stock, of which 16,000 shares are issued and outstanding; (y) 200,000 shares, of Series C Preferred Stock, par value $0.001 $ 1.00 per share share, of which no shares are issued and outstanding; and (the "Company z) 200,000 shares of Series D Preferred Stock"), of which, as of the date hereof, none which 200,000 shares are issued and outstanding. All of the issued and outstanding Shares shares of Common Stock and Preference Stock have been duly authorized, validly issued, and are fully paid, nonassessable and free of preemptive rights. As of October 15August 5, 19961998, 2,782,116 Shares 1,373,300 shares of Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the exercise of outstanding options granted by the Company to purchase shares of Common Stock Options issued pursuant to the Company stock incentive plans listed on Section 4.2(a) of the Company Disclosure Schedule (the "Company -9- 14 Stock Incentive Plans, 78,813 Shares ") and 1,651,456 shares of Common Stock were reserved for issuance under the Company's 1991 Employee Stock Purchase Plan (the "ESPP") and 3,345,455 Shares were reserved for issuance pursuant to the issuable upon conversion of the Company's Preference Stock in accordance with its terms. Since August 5-3/4% Convertible Subordinated Notes due August 15, 2001 (the "Convertible Notes"). The final purchase by participants under the ESPP will occur no later than the business day immediately preceding the Effective Time. The ESPP will terminate at the Effective Time. A total of 35,000 shares of Preferred Stock have been designated as Series A Participating Preferred Stock and reserved for issuance in connection with the exercise of the Rights (as defined in Section 2.20). Except 1998, except as set forth in on Section 2.2(a4.2(a) of the Company Disclosure Schedule, since October 15, 1996, no shares of the Company's capital stock have been issued other otherwise than pursuant to stock the exercise of options granted by the Company to purchase shares of Common Stock already in existence on October 15such date, 1996and, and since July 23, 1998, no stock options to purchase shares of the Company Common Stock have been granted. Except as set forth above or as set forth in this Section 2.2(a) of the Company Disclosure Schedule, as of the date hereof4.2(a), there are outstanding (i) no shares of capital stock or other voting securities of the Company, (ii) no securities of the Company or its subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) no options or other rights to acquire from the Company or its subsidiaries, and no obligations other contract, understanding, arrangement or obligation (whether or not contingent) of the Company or its subsidiaries to issueissue or sell, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, Company and (iv) no equity equivalents, or interests in the ownership or earnings earnings, of the Company or its subsidiaries or other similar rights (including stock appreciation rights) (collectively, the "Company Securities"). There are no outstanding contracts, understandings, arrangements or obligations (whether or not contingent) of the Company or its subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. Except as set forth in Section 2.2(a4.2(a) of the Company Disclosure Schedule, there are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or to which it is bound relating to the voting of any shares of capital stock of the Company. (b) Except as set forth in Section 4.2(b) of the Company Disclosure Schedule, (i) all of the outstanding capital stock of the Company's subsidiaries is validly issued, fully paid and nonassessable and is owned beneficially and of record by the Company, directly or indirectly, free and clear of any Lien and (ii) there are no securities of the Company or its subsidiaries convertible into or exchangeable for, no options or other rights to acquire from the Company or its subsidiaries, and no other contract, understanding, arrangement or obligation (whether or not contingent) of the Company or its subsidiaries to issue or sell any capital stock or other ownership interests in, or any other securities of, any subsidiary of the Company. There are no contracts, understandings, arrangements or obligations (whether or not contingent) of the Company or its subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any subsidiary of the Company. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company or its subsidiaries is a party or to which it is bound relating to the voting of any shares of capital stock of any subsidiary of the Company. (c) The Company has no bonds, debentures, notes or other instruments or evidence of indebtedness having the right to vote (or convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters on which holders of the Company's outstanding securities may vote issued or outstanding. (d) The Company is not subject to a "rights agreement," poison pill, or similar obligation. That certain Shareholders Rights Agreement, dated April 14, 1986, by and between the Company and PNC Bank, N.A., as Rights Agent, has expired in accordance with its terms, no longer has any force or effect whatsoever and the rights issued thereunder have expired. The Company has not declared a dividend on its Common Stock since May 1987. SECTION 4.3.