Common use of Capitalization of Seller Clause in Contracts

Capitalization of Seller. (a) On the date of this Agreement, the authorized capital stock of Seller consists of (i) 15,000,000 shares of Seller Common Stock, of which 6,202,425 shares are issued and outstanding and (ii) 2,500,000 shares of preferred stock, of which 15,000 shares have been designated Seller Preferred Stock, of which 1,793 shares are issued and outstanding. Except for (i) Options listed in the Seller Disclosure Schedule which were granted under the Seller Equity Plans, (ii) the rights created pursuant to this Agreement, (iii) rights created pursuant to the Warrants, (iv) rights created pursuant to the Debentures, and (v) as set forth in Section 3.03 of Seller Disclosure Schedule, there are no other options, warrants, calls, rights, commitments or agreements of any character to which Seller is a party or by which it is bound obligating Seller 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, Seller. All outstanding shares are, and all shares subject to issuance as aforesaid, 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 free of preemptive rights or rights of first refusal. None of Seller or any of its Subsidiaries is required to redeem, repurchase or otherwise acquire shares of capital stock of Seller or any of its Subsidiaries. Seller has no stockholder rights plan or agreement in force providing for the issuance to holders of shares of Seller Common Stock or Seller Preferred Stock of rights to purchase or receive stock, cash or other assets upon the acquisition or proposed acquisition of shares of Seller Common Stock or Seller Preferred Stock by a Person (a "RIGHTS PLAN"), nor has Seller's Board of Directors or stockholders ever adopted a Rights Plan. (b) All of Seller's Subsidiaries are listed in Exhibit 21.1 to Seller's Annual Report on Form 10-KSB for the fiscal year ended March 31, 1999 (the "1999 10-KSB"). Except as set forth in the 1999 10-KSB or in the Seller Disclosure Schedule, Seller owns all of the outstanding capital stock of its Subsidiaries free and clear of any liens, security interests, pledges, agreements, claims, charges or encumbrances of any nature whatsoever. Except as set forth in Section 3.03 of Seller Disclosure Schedule, there are no voting trusts or other agreements or understandings to which Seller or any of its Subsidiaries is a party or by which Seller or any of its Subsidiaries may be bound with respect to the voting of the capital stock of Seller or any of Seller's Subsidiaries. Except as set forth in Section 3.03 of Seller Disclosure Schedule, there are no options, warrants, calls, rights, commitments, or agreements of any character to which any of Seller's Subsidiaries is a party or by which any of Seller's Subsidiaries is bound obligating such Subsidiary to issue, sell, deliver, repurchase or redeem, or caused to be issued, sold, delivered, repurchased or redeemed, any shares of capital stock of, or equity interests in, such Subsidiary. All of the outstanding capital stock of each of Seller's Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and issued free of preemptive rights or rights of first refusal.

Capitalization of Seller. (ai) On As of the date of this Agreement, the authorized capital stock of Seller consists solely of (iA) 15,000,000 shares of 50,000,000 Seller Common StockShares, of which 6,202,425 shares are 35,838,513 Seller Shares were issued and outstanding outstanding, and (iiB) 2,500,000 5,000,000 shares of preferred stock, of which 15,000 shares have been designated $.01 par value per share (“Seller Preferred Stock”), no shares of which 1,793 shares are issued and outstanding. Except As of the date of this Agreement, 7,458,746 Seller Shares were held in Seller’s treasury. All outstanding Seller Shares have been duly authorized and are validly issued, fully paid and non-assessable, and were not issued in violation of the preemptive rights of any person. All issued Seller Shares have been issued in compliance in all material respects with all applicable federal and state securities laws. As of the date of this Agreement, there were (a) 200,567 Seller Shares granted in respect of outstanding Seller Restricted Stock Awards; (b) 28,175 Seller Shares reserved for issuance upon the exercise of outstanding Seller Stock Options; and (ic) Options listed 229,398 Seller Shares reserved for issuance upon settlement of outstanding Seller Performance Awards. Seller has furnished to Buyer a true, complete and correct copy of each of the Seller’s Stock Plans, and a list of all participants in the Seller Disclosure Schedule which were granted under Stock Plans as of the Seller Equity Plans, (ii) the rights created pursuant to this Agreement, (iii) rights created pursuant to the Warrants, (iv) rights created pursuant to the Debentures, and (v) as date hereof is set forth in Section 3.03 3.01(b)(i) of the Seller Disclosure Schedule. (ii) As of the date of this Agreement, except for this Agreement and the Seller Equity Awards, there are no other options, warrants, calls, rights, commitments or agreements of any character to which Seller is a party or by which it is bound obligating Seller to issue, deliver or sell, deliver, repurchase or redeem or cause to be issued, delivered or sold, deliveredany additional Seller Shares or obligating Seller to grant, repurchased extend or redeemed enter into any shares such option, warrant, call, right, commitment or agreement. As of capital stock ofthe date of this Agreement, or equity interests in, Seller. All there are no outstanding shares are, and all shares subject to issuance as aforesaid, 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 free of preemptive rights or rights of first refusal. None contractual obligations of Seller or any of its Subsidiaries is required to redeemrepurchase, repurchase redeem or otherwise acquire shares of capital stock of any Seller or any of its Subsidiaries. Shares except for such obligations arising under the Seller has no stockholder rights plan or agreement in force providing for the issuance to holders of shares of Seller Common Stock or Seller Preferred Stock of rights to purchase or receive stock, cash or other assets upon the acquisition or proposed acquisition of shares of Seller Common Stock or Seller Preferred Stock by a Person (a "RIGHTS PLAN"), nor has Seller's Board of Directors or stockholders ever adopted a Rights PlanPlans. (biii) All of Seller's Subsidiaries are listed in Exhibit 21.1 to Seller's Annual Report on Form 10-KSB for the fiscal year ended March 31, 1999 (the "1999 10-KSB"). Except as set forth disclosed in the 1999 10-KSB or in Section 3.01(b)(iii) of the Seller Disclosure Schedule, since December 31, 2023, Seller owns all has not (A) issued or permitted to be issued any Seller Shares, or securities exercisable for or convertible into Seller Shares, other than upon exercise of the Seller Stock Options, vesting of Seller Restricted Stock Awards or settlement of Seller Performance Awards, in each case granted prior to the date hereof under the Seller Stock Plans; (B) repurchased, redeemed or otherwise acquired, directly or indirectly, through any Seller Subsidiary or otherwise, any Seller Shares; or (C) declared, set aside, made or paid to the shareholders of Seller dividends or other distributions on the outstanding capital stock of its Subsidiaries free and clear of any liens, security interests, pledges, agreements, claims, charges or encumbrances of any nature whatsoever. Seller Shares. (iv) Except as set forth disclosed in Section 3.03 3.01(b)(iv) of the Seller Disclosure Schedule, there are no voting trusts or other agreements or understandings to which Seller or any of its Subsidiaries is a party or by which Seller or any of its Subsidiaries may be bound with respect to the voting as of the capital stock date of this Agreement, no trust preferred or subordinated debt securities of Seller or any of Seller's SubsidiariesSeller Sub are issued or outstanding. Except as set forth in Section 3.03 No bonds, debentures, notes or other indebtedness of Seller Disclosure Schedule, there having the right to vote on any matters on which Seller’s shareholders may vote are no options, warrants, calls, rights, commitments, issued or agreements of any character to which any of Seller's Subsidiaries is a party or by which any of Seller's Subsidiaries is bound obligating such Subsidiary to issue, sell, deliver, repurchase or redeem, or caused to be issued, sold, delivered, repurchased or redeemed, any shares of capital stock of, or equity interests in, such Subsidiaryoutstanding. All outstanding bonds, debentures, notes, trust preferred securities or other similar obligations of the outstanding capital stock of each of Seller's Subsidiaries is duly authorizedSeller and Seller Sub were issued in compliance in all material respects with all applicable laws, validly issued, fully paid rules and nonassessable and issued free of preemptive rights or rights of first refusalregulations.

Capitalization of Seller. (a) On the date of this Agreement, the The authorized capital stock of Seller consists Seller, the number of (i) 15,000,000 shares of Seller Common Stockoutstanding, the number of which 6,202,425 shares are issued and outstanding and (ii) 2,500,000 shares of preferred stockCommon Stock reserved for issuance upon the exercise of outstanding Seller stock options pursuant to stock option plans, of which 15,000 shares have been designated Seller Preferred Stockthe employee stock purchase plan and the director stock plan, of which 1,793 shares are issued and outstanding. Except for (i) Options listed each as described in the Seller Disclosure Schedule which were granted under Filed SEC Documents (collectively, the Seller Equity "Stock Plans"), (ii) and the rights created pursuant to this Agreement, (iii) rights created number of additional shares of Common Stock reserved for issuance pursuant to the WarrantsStock Plans, (iv) rights created pursuant to the Debentures, and (v) are all substantially as set forth in Section 3.03 Seller's proxy statement for its annual meeting held March 23, 1999. Other than as set forth above, at the close of business on the date of Seller's proxy statement for its annual meeting held March 23, 1999 ("Proxy Statement Date"), there were outstanding no shares of Capital Stock or options, warrants or other rights to acquire Capital Stock from Seller. Since the Proxy Statement Date, there have been no issuances by Seller of shares of Capital Stock or of options, warrants or other rights to acquire Capital Stock from Seller, other than issuances and grants of shares of Common Stock and rights to acquire shares of Common Stock that were reserved for issuance as of the Proxy Statement Date and that were issued pursuant to the terms of the Stock Plans. (b) No bonds, debentures, notes or other indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which stockholders of Seller Disclosure Schedulemay vote are issued or outstanding ("Voting Debt"). (c) All outstanding shares of Common Stock are, there are no other options, warrants, calls, rights, commitments or agreements of any character to which Seller is a party or by which it is bound obligating Seller to issue, sell, deliver, repurchase or redeem or cause to be issued, sold, delivered, repurchased or redeemed and any shares of capital Common Stock which may be issued upon the exercise of stock of, or equity interests in, Seller. All outstanding shares are, and all shares subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, options when issued will be, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. All shares of Common Stock which may be issued upon the exercise of stock options will at the time issued by Seller be free and clear of preemptive rights all liens, claims, charges, pledges, mortgages, security interests or other encumbrances ("Liens"). Other than as set forth above, and except for this Agreement (and the securities being issued hereunder) and the Stock Plans, there are not any options, warrants, rights, convertible or exchangeable securities, "phantom" stock rights, stock appreciation rights, stock-based performance units, commitments, contracts, arrangements or undertakings of any kind to which Seller or any of the Subsidiaries is a party or by which any of them is bound (i) obligating Seller or any of the Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, Seller or of any of the Subsidiaries or any Voting Debt, (ii) obligating Seller or any of the Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking or (iii) that give any person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights of first refusal. None holders of Common Stock. (d) There are no outstanding contractual obligations of Seller or any of its the Subsidiaries is required to redeemrepurchase, repurchase redeem or otherwise acquire any shares of capital stock of Seller or any of its Subsidiaries. Seller has no stockholder rights plan or agreement in force providing for the issuance Subsidiaries and, to holders of shares of Seller Common Stock or Seller Preferred Stock of rights to purchase or receive stock, cash or other assets upon the acquisition or proposed acquisition of shares of Seller Common Stock or Seller Preferred Stock by a Person (a "RIGHTS PLAN"), nor has Seller's Board of Directors or stockholders ever adopted a Rights Plan. (b) All Knowledge of Seller's Subsidiaries are listed in Exhibit 21.1 to Seller's Annual Report on Form 10-KSB for the fiscal year ended March 31, 1999 (the "1999 10-KSB"). Except as set forth in the 1999 10-KSB or in the Seller Disclosure Schedule, Seller owns all of the outstanding capital stock of its Subsidiaries free and clear of any liens, security interests, pledges, agreements, claims, charges or encumbrances of any nature whatsoever. Except as set forth in Section 3.03 of Seller Disclosure Schedule, there are no voting trusts or other agreements or understandings to which Seller or any of its Subsidiaries is a party or by which Seller or any of its Subsidiaries may be bound irrevocable proxies with respect to the voting shares of the capital stock of Seller Common Stock or any of Seller's Subsidiaries. Except as set forth in Section 3.03 of Seller Disclosure Schedule, there are no options, warrants, calls, rights, commitments, or agreements of any character to which any of Seller's Subsidiaries is a party or by which any of Seller's Subsidiaries is bound obligating such Subsidiary to issue, sell, deliver, repurchase or redeem, or caused to be issued, sold, delivered, repurchased or redeemed, any shares of capital stock of, or equity interests in, such Subsidiary. All of the outstanding capital stock of each any Subsidiary of Seller's Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and issued free of preemptive rights or rights of first refusal.

Capitalization of Seller. (ai) On The authorized capital of Seller consists solely of 14,608,000 Seller Shares, of which 7,517,893 Seller Shares were issued and outstanding as of March 1, 2018. As of the date of this Agreement, no Seller Shares were held in Seller’s treasury. All outstanding Seller Shares have been duly authorized and are validly issued, fully paid and non-assessable, and were not issued in violation of the authorized capital stock preemptive rights of any person. All issued Seller Shares have been issued in compliance in all material respects with all applicable federal and state securities laws. As of the date of this Agreement, no options to acquire Seller Shares (a “Seller Stock Option”) were outstanding and no Seller Shares were reserved for issuance upon the exercise of Seller consists Stock Options. Seller has furnished to Buyer a true, complete and correct copy of the Seller’s stock compensation and stock based incentive plans (i) 15,000,000 shares the “Seller Stock Plans”), and a list of Seller Common Stock, of which 6,202,425 shares are issued and outstanding and (ii) 2,500,000 shares of preferred stock, of which 15,000 shares have been designated Seller Preferred Stock, of which 1,793 shares are issued and outstanding. Except for (i) Options listed all participants in the Seller Disclosure Schedule which were granted under Stock Plans as of the Seller Equity Plans, (ii) the rights created pursuant to this Agreement, (iii) rights created pursuant to the Warrants, (iv) rights created pursuant to the Debentures, and (v) as date hereof is set forth in Section 3.03 3.01(b)(i) of the Seller Disclosure Schedule. (ii) As of the date hereof, except for this Agreement, there are no other options, warrants, calls, rights, commitments or agreements of any character to which Seller is a party or by which it is bound obligating Seller to issue, deliver or sell, deliver, repurchase or redeem or cause to be issued, delivered or sold, deliveredany additional Seller Shares or obligating Seller to grant, repurchased extend or redeemed enter into any shares such option, warrant, call, right, commitment or agreement. As of capital stock ofthe date of this Agreement, or equity interests in, Seller. All there are no outstanding shares are, and all shares subject to issuance as aforesaid, 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 free of preemptive rights or rights of first refusal. None contractual obligations of Seller or any of its Subsidiaries is required to redeemrepurchase, repurchase redeem or otherwise acquire shares of capital stock of any Seller or any of its Subsidiaries. Seller has no stockholder rights plan or agreement in force providing for the issuance to holders of shares of Seller Common Stock or Seller Preferred Stock of rights to purchase or receive stock, cash or other assets upon the acquisition or proposed acquisition of shares of Seller Common Stock or Seller Preferred Stock by a Person (a "RIGHTS PLAN"), nor has Seller's Board of Directors or stockholders ever adopted a Rights PlanShares. (biii) All of Seller's Subsidiaries are listed in Exhibit 21.1 to Seller's Annual Report on Form 10-KSB for the fiscal year ended March 31, 1999 (the "1999 10-KSB"). Except as set forth disclosed in the 1999 10-KSB or in Section 3.01(b)(iii) of the Seller Disclosure Schedule, since December 31, 2017, Seller owns all has not (A) issued or permitted to be issued any Seller Shares, or securities exercisable for or convertible into Seller Shares; (B) repurchased, redeemed or otherwise acquired, directly or indirectly, through any Seller Subsidiary or otherwise, any Seller Shares; or (C) declared, set aside, made or paid to the shareholders of Seller dividends or other distributions on the outstanding Seller Shares. (iv) Except as disclosed in Section 3.01(b)(iv) of the outstanding capital stock of its Subsidiaries free and clear of any liens, security interests, pledges, agreements, claims, charges or encumbrances of any nature whatsoever. Except as set forth in Section 3.03 of Seller Disclosure Schedule, there are no voting trusts or other agreements or understandings to which Seller or any of its Subsidiaries is a party or by which Seller or any of its Subsidiaries may be bound with respect to the voting as of the capital stock date of this Agreement, no trust preferred or subordinated debt securities of Seller or any of Seller's SubsidiariesSeller Sub are issued or outstanding. Except as set forth in Section 3.03 No bonds, debentures, notes or other indebtedness of Seller Disclosure Schedule, there having the right to vote on any matters on which Seller’s shareholders may vote are no options, warrants, calls, rights, commitments, issued or agreements of any character to which any of Seller's Subsidiaries is a party or by which any of Seller's Subsidiaries is bound obligating such Subsidiary to issue, sell, deliver, repurchase or redeem, or caused to be issued, sold, delivered, repurchased or redeemed, any shares of capital stock of, or equity interests in, such Subsidiaryoutstanding. All outstanding bonds, debentures, notes, trust preferred securities or other similar obligations of the outstanding capital stock of each of Seller's Subsidiaries is duly authorizedSeller and Seller Sub were issued in compliance in all material respects with all applicable laws, validly issued, fully paid rules and nonassessable and issued free of preemptive rights or rights of first refusalregulations.

Capitalization of Seller. (a) On the date of this Agreement, the The authorized capital stock of Seller consists ("Capital Stock"), the number of (i) 15,000,000 shares of Seller Common Stockoutstanding, the number of which 6,202,425 shares are issued and outstanding and (ii) 2,500,000 shares of preferred stockCommon Stock reserved for issuance upon the exercise of outstanding Seller stock options pursuant to stock option plans, of which 15,000 shares have been designated Seller Preferred Stockthe employee stock purchase plan and the director stock plan, of which 1,793 shares are issued and outstanding. Except for (i) Options listed each as described in the Seller Disclosure Schedule which were granted under Filed SEC Documents (collectively, the Seller Equity "Stock Plans"), (ii) and the rights created pursuant to this Agreement, (iii) rights created number of additional shares of Common Stock reserved for issuance pursuant to the WarrantsStock Plans, (iv) rights created pursuant to the Debentures, and (v) are all substantially as set forth in Section 3.03 Seller's proxy statement for its annual meeting held March 23, 1999. Other than as set forth above, at the close of business on the date of Seller's proxy statement for its annual meeting held March 23, 1999 ("Proxy Statement Date"), there were outstanding no shares of Capital Stock or options, warrants or other rights to acquire Capital Stock from Seller. Since the Proxy Statement Date, there have been no issuances by Seller of shares of Capital Stock or of options, warrants or other rights to acquire Capital Stock from Seller, other than issuances and grants of shares of Common Stock and rights to acquire shares of Common Stock that were reserved for issuance as of the Proxy Statement Date and that were issued pursuant to the terms of the Stock Plans. (b) No bonds, debentures, notes or other indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which stockholders of Seller Disclosure Schedulemay vote are issued or outstanding ("Voting Debt"). (c) All outstanding shares of Common Stock are, there are no other options, warrants, calls, rights, commitments or agreements of any character to which Seller is a party or by which it is bound obligating Seller to issue, sell, deliver, repurchase or redeem or cause to be issued, sold, delivered, repurchased or redeemed and any shares of capital Common Stock which may be issued upon the exercise of stock of, or equity interests in, Seller. All outstanding shares are, and all shares subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, options when issued will be, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. All shares of Common Stock which may be issued upon the exercise of stock options will at the time issued by Seller be free and clear of preemptive rights all liens, claims, charges, pledges, mortgages, security interests or other encumbrances ("Liens"). Other than as set forth above, and except for this Agreement (and the securities being issued hereunder) and the Stock Plans, there are not any options, warrants, rights, convertible or exchangeable securities, "phantom" stock rights, stock appreciation rights, stock-based performance units, commitments, contracts, arrangements or undertakings of any kind to which Seller or any of the Subsidiaries is a party or by which any of them is bound (i) obligating Seller or any of the Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, Seller or of any of the Subsidiaries or any Voting Debt, (ii) obligating Seller or any of the Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking or (iii) that give any person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights of first refusal. None holders of Common Stock. (d) There are no outstanding contractual obligations of Seller or any of its the Subsidiaries is required to redeemrepurchase, repurchase redeem or otherwise acquire any shares of capital stock of Seller or any of its Subsidiaries. Seller has no stockholder rights plan or agreement in force providing for the issuance Subsidiaries and, to holders of shares of Seller Common Stock or Seller Preferred Stock of rights to purchase or receive stock, cash or other assets upon the acquisition or proposed acquisition of shares of Seller Common Stock or Seller Preferred Stock by a Person (a "RIGHTS PLAN"), nor has Seller's Board of Directors or stockholders ever adopted a Rights Plan. (b) All Knowledge of Seller's Subsidiaries are listed in Exhibit 21.1 to Seller's Annual Report on Form 10-KSB for the fiscal year ended March 31, 1999 (the "1999 10-KSB"). Except as set forth in the 1999 10-KSB or in the Seller Disclosure Schedule, Seller owns all of the outstanding capital stock of its Subsidiaries free and clear of any liens, security interests, pledges, agreements, claims, charges or encumbrances of any nature whatsoever. Except as set forth in Section 3.03 of Seller Disclosure Schedule, there are no voting trusts or other agreements or understandings to which Seller or any of its Subsidiaries is a party or by which Seller or any of its Subsidiaries may be bound irrevocable proxies with respect to the voting shares of the capital stock of Seller Common Stock or any of Seller's Subsidiaries. Except as set forth in Section 3.03 of Seller Disclosure Schedule, there are no options, warrants, calls, rights, commitments, or agreements of any character to which any of Seller's Subsidiaries is a party or by which any of Seller's Subsidiaries is bound obligating such Subsidiary to issue, sell, deliver, repurchase or redeem, or caused to be issued, sold, delivered, repurchased or redeemed, any shares of capital stock of, or equity interests in, such Subsidiary. All of the outstanding capital stock of each any Subsidiary of Seller's Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and issued free of preemptive rights or rights of first refusal.