Common use of Capitalization of Company Clause in Contracts

Capitalization of Company. As of February 28, 1998, Company's authorized capital shares consisted of (i) 50,000,000 shares of common stock, without par value, of which (a) 16,672,757 shares were issued and outstanding, (b) 1,962,656 shares were issued and held in treasury (which does not include the shares reserved for issuance as set forth in clause (i)(c) below) and (c) 625,025 shares were reserved for issuance upon the exercise or conversion of options, warrants or convertible securities granted or issuable by Company pursuant to the Company's Incentive Plan, and (ii) 3,000,000 shares of preferred stock, without par value ("Company Preferred Shares"). As of the date of this Agreement, Company has designated as to series: (i) 1,000,000 shares of "Class A Serial Preferred", none of which is issued and outstanding; (ii) 1,000,000 shares of "Class B Serial Preferred", none of which is issued and outstanding; and (iii) 1,000,000 shares of "Class C Preferred", none of which is issued and outstanding. As of the date hereof, the series of "Class C Preferred" ("Class C Preferred Shares") is reserved for issuance in accordance with the Rights Agreement, dated as of October 13, 1988, as amended, by and between Company and First Chicago Trust Company of New York (successor to Society National Bank, successor to National City Bank), as Rights Agent ("Company Rights Agreement"), pursuant to which Company has issued rights ("Company Rights") to purchase shares of Class C Preferred Shares. Each outstanding share of Company capital stock is a common share, duly authorized and validly issued, fully paid and nonassessable, and no outstanding share of Company capital stock has been issued in violation of any preemptive or similar rights. As of the date hereof, other than as set forth in the Company SEC Documents, pursuant to the Company Rights Agreement or in Section 4.3 to the Company

Capitalization of Company. As of February 28, 1998, Company's authorized capital shares consisted of (i) 50,000,000 shares of common stock, without par value, of which (a) 16,672,757 shares were issued and outstanding, (b) 1,962,656 shares were issued and held in treasury (which does not include the shares reserved for issuance as set forth in clause (i)(c) below) and (c) 625,025 shares were reserved for issuance upon the exercise or conversion of options, warrants or convertible securities granted or issuable by Company pursuant to the Company's Incentive Plan, and (ii) 3,000,000 shares of preferred stock, without par value ("Company Preferred Shares"). As of the date of this Agreement, Company has designated as to series: (i) 1,000,000 shares of "Class A Serial Preferred", none of which is issued and outstanding; (ii) 1,000,000 shares of "Class B Serial Preferred", none of which is issued and outstanding; and (iii) 1,000,000 shares of "Class C Preferred", none of which is issued and outstanding. As of the date hereof, the series of "Class C Preferred" ("Class C Preferred Shares") is reserved for issuance in accordance with the Rights Agreement, dated as of October 13, 1988, as amended, by and between Company and First Chicago Trust Company of New York (successor to Society National Bank, successor to National City Bank), as Rights Agent ("Company Rights Agreement"), pursuant to which Company has issued rights ("Company Rights") to purchase shares of Class C Preferred Shares. Each outstanding share of Company capital stock is a common share, duly authorized and validly issued, fully paid and nonassessable, and no outstanding share of Company capital stock has been issued in violation of any preemptive or similar rights. As of the date hereof, other than as set forth in the Company SEC Documents, pursuant to the Company Rights Agreement or in Section 4.3 to the Company Disclosure Schedule, there are no outstanding subscriptions, options, warrants, puts, calls, agreements, understandings, claims or other commitments or rights of any type relating to the issuance, sale or transfer by Company or any of its subsidiaries of any securities of Company, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of Company, and Company has no obligation of any kind to issue any additional securities or to pay for securities of Company or any predecessor. Company has no outstanding bonds, debentures, notes or other similar obligations the holders of which have the right to vote generally with holders of Company Common Shares.

Capitalization of Company. As of February 28, 1998, Company's authorized capital shares consisted of (i) 50,000,000 shares of common stock, without par value, of which (a) 16,672,757 shares were issued and outstanding, (b) 1,962,656 shares were issued and held in treasury (which does not include the shares reserved for issuance as set forth in clause (i)(c) below) and (c) 625,025 shares were reserved for issuance upon the exercise or conversion of options, warrants or convertible securities granted or issuable by Company pursuant to the Company's Incentive Plan, and (ii) 3,000,000 shares of preferred stock, without par value ("Company Preferred Shares"). As of On the date of this Agreement, the authorized capital stock of Company has designated as to series: consists of (i) 1,000,000 11,987,594 shares of "Class A Serial Preferred"Company Common Stock, none of which is 7,728,965 shares are issued and outstanding and (ii) 3,012,406 shares of Company Preferred Stock, of which (A) 1,400,000 shares have been designated Series A Preferred Stock, of which 462,937 shares are issued and outstanding; , (iiB) 1,000,000 730,000 shares of "Class have been designated Series B Serial Preferred"Preferred Stock, none of which is 597,273 shares are issued and outstanding; , (C) 410,906 shares have been designated Series C Preferred Stock, all of which are issued and outstanding, and (iiiD) 1,000,000 471,500 shares of "Class C Preferred"are designated Series D Preferred Stock, none of which is 466,500 are issued and outstanding. As Company Preferred Stock is convertible into Company Common Stock on a one-for-one basis, and such conversion ratio has not required adjustment (whether pursuant to the terms of such Company Preferred Stock or otherwise) since the date hereoforiginal issuance of such Company Preferred Stock. (b) Except for (i) Options listed in the Company Disclosure Schedule which were granted under the Company Equity Plans, the series (ii) 52,058 shares of "Class C Preferred" ("Class C Preferred Shares") is Company Common Stock reserved for issuance in accordance with pursuant to the Rights Company Employee Stock Purchase Plan, (iii) the rights created pursuant to this Agreement, dated (iv) rights created pursuant to the Warrants, (v) rights created pursuant to the Guidant Stock Purchase Agreement, and (vi) those matters set forth in Section 3.03(b) of Company Disclosure Schedule, there are no options, warrants, calls, rights, commitments or agreements of any character to which Company is a party or by which it is bound obligating Company to issue, sell, deliver, repurchase or redeem or cause to be issued, sold, delivered, repurchased or redeemed any shares of capital stock of, or equity interests in, Company. Except as set forth in Section 3.03(b) of October 13the Company Disclosure Schedule, 1988all outstanding shares are, and all shares subject to issuance as amendedaforesaid, by upon issuance on the terms and between Company and First Chicago Trust Company of New York (successor to Society National Bank, successor to National City Bank), as Rights Agent ("Company Rights Agreement"), conditions specified in the instruments pursuant to which Company has issued rights ("Company Rights") to purchase shares of Class C Preferred Shares. Each outstanding share of Company capital stock is a common sharethey are issuable, will be, duly authorized and authorized, validly issued, fully paid and nonassessablenonassessable and free of preemptive rights or rights of first refusal. Company is not required to redeem, and repurchase or otherwise acquire shares of capital stock of Company. Company has no outstanding share shareholder rights plan or agreement in force providing for the issuance to holders of shares of Company capital stock Common Stock or Company Preferred Stock of rights to purchase or receive stock, cash or other assets upon the acquisition or proposed acquisition of shares of Company Common Stock or Company Preferred Stock by a Person (a "RIGHTS PLAN"), nor has been issued in violation Company's Board of any preemptive Directors or similar rightsshareholders ever adopted a Rights Plan. As of the date hereof, other than Except as set forth in Section 3.03(b) of the Company SEC DocumentsDisclosure Schedule, pursuant there are no voting trusts or other agreements or understandings to which Company is a party or by which Company may be bound with respect to the voting of the capital stock of Company. All of the outstanding Company Rights Agreement Common Stock and Company Preferred Stock was issued in compliance with applicable federal and state securities laws and regulations. (c) Company has never affected a stock split, stock dividend, reverse stock split, combination, reclassification or in Section 4.3 other change to its capital stock since the Companyclosing of its initial public offering of Company Common Stock, and Company has never changed its corporate name since that date.