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: 20,000,000 shares of Common Stock and 1,000,000 shares of preferred stock, par value $.001 per share (the "Preferred Stock"). As of June 25, 1998, 5,173,077 --------------- Shares of Common Stock are issued and outstanding, no shares of the Preferred Stock are outstanding. All of the Shares have been validly issued, and are fully paid, nonassessable and free of preemptive rights. As of June 25, 1998, a total of 1,016,129 Shares are reserved for issuance pursuant to outstanding Stock Options under the Company Stock Plans, of which (A) 65,321 Shares are reserved for issuance pursuant to outstanding Stock Options under the Company's 1991 Stock Option Plan, (B) 476,004 Shares are reserved for issuance pursuant to outstanding Stock Options under the Company's 1995 Stock Option Plan, (C) 469,804 Shares are reserved for issuance 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 Company's 1996 Employee Stock Purchase Plan at a price of $13.60 per Share. Since June 25, 1998, no shares of the Company's capital stock have been issued other than pursuant to stock options already in existence on such date, and since June 25, 1998, no stock options have been granted. Except as set forth above and except for the Rights to, among other things, purchase Series A Participating Preferred Stock issued pursuant to the Rights 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 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 Subsidiaries, and no obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting 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 or other similar rights (collectively, "Company Securities"). There are no outstanding ------------------ obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. (b) All of the outstanding capital stock of, or other ownership interests in, each Subsidiary of the Company, is owned by the Company, directly or indirectly, free and clear of any Lien (as hereinafter defined) or any other limitation or restriction (including any restriction on the right to vote or sell the same, except as may be provided as a matter of law). All such shares have been validly issued, fully paid and nonasessable, and have been issued free of preemptive rights. There are no securities of the Company or any of its Subsidiaries convertible into or exchangeable for, no options or other rights to acquire from the Company or any of its Subsidiaries, and no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of any capital stock or other ownership interests in, or any other securities of, any Subsidiary of the Company. There are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any Subsidiary of the Company. For purposes of this Agreement, "Lien" means, with respect to any ---- asset (includ- ing, without limitation, any security) any option, claim, mortgage, lien, pledge, charge, security interest or encumbrance or restrictions of any kind in respect of such asset. (c) The Shares and the Rights constitute the only class of equity securities of the Company or any of its Subsidiaries registered or required to be registered under the Exchange Act. (d) 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 the Subsidiaries. (e) Other than as set forth on Section 6.2(e) of the Company Disclosure Schedule, there is no outstanding material Indebtedness (as hereinafter defined) of the Company or any of its Subsidiaries. Except as identified in Section 6.2(e) of the Company Disclosure Schedule, no such Indebtedness of the Company or its Subsidiaries contains any restriction upon (i) the prepayment of such Indebtedness, (ii) the incurrence of Indebtedness by the Company or its Subsidiaries, respectively, or (iii) the ability of the Company or its Subsidiaries to grant any liens on its properties or assets. For purposes of this Agreement, "Indebtedness" shall include (i) all indebtedness ------------ for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices, but excluding operating leases), (ii) any other indebtedness which is evidenced by a note, bond, debenture or similar instrument, (iii) all obligations under financing leases, (iv) all obligations in respect of acceptances issued or created, (v) all liabilities secured by any lien on any property, and (vi) all guarantee obligations. (f) Except for obligations incurred in connection with its incorporation or organization, or the negotiation and consummation of this Agreement and the Transactions, Acquisition Sub has not incurred any obligation or liability or engaged in any business or activity of any type or kind whatsoever or entered into any agreement or arrangement with any person or entity.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of: 20,000,000 shares 35,000,000 Shares, of Common Stock which, as of October 15, 1996, 20,959,260 Shares were issued and 1,000,000 outstanding, and 5,000,000 shares of preferred stock, par value $.001 0.001 per share (the "Company Preferred Stock"). As , of June 25which, 1998as of the date hereof, 5,173,077 --------------- Shares of Common Stock none 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 June 25October 15, 19981996, a total 2,782,116 Shares were reserved for issuance and issuable upon or otherwise deliverable in connection with the exercise of 1,016,129 outstanding Company Stock Options issued pursuant to the Company Plans, 78,813 Shares are 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 outstanding Stock Options 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 Company 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 Plans, of which (A) 65,321 Shares are have been designated as Series A Participating Preferred Stock and reserved for issuance pursuant to outstanding Stock Options under the Company's 1991 Stock Option Plan, (B) 476,004 Shares are reserved for issuance pursuant to outstanding Stock Options under the Company's 1995 Stock Option Plan, (C) 469,804 Shares are reserved for issuance 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 in connection with the exercise of Purchase Plan Options under the Company's 1996 Employee Stock Purchase Plan at a price Rights (as defined in Section 2.20). Except as set forth in Section 2.2(a) of $13.60 per Share. Since June 25the Company Disclosure Schedule, 1998since October 15, 1996, no shares of the Company's capital stock have been issued other than pursuant to stock options already in existence on such dateOctober 15, 1996, and since June 25, 1998, no stock options have been granted. Except as set forth above and except for or as set forth in Section 2.2(a) of the Rights toCompany Disclosure Schedule, among other things, purchase Series A Participating Preferred Stock issued pursuant to as of the Rights Agreementdate hereof, 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 securi- ties 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 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. (b) All of the outstanding capital stock of, or other ownership interests in, each Subsidiary of the Company, 's subsidiaries is owned by the Company, directly or indirectly, free and clear of any Lien (as hereinafter defineddefined below) or any other limitation or restriction (including any restriction on the right to vote or sell the same, except as may be provided as a matter of law). All such shares have been validly issued, fully paid and nonasessable, and have been issued free of preemptive rights. There are no securities of the Company or any of its Subsidiaries subsidiaries convertible into or exchangeable for, no options or other rights to acquire from the Company or any of its Subsidiariessubsidiaries, and no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of any capital stock or other ownership interests in, or any other securities of, any Subsidiary subsidiary of the Company. There are no outstanding contractual obligations of the Company or any of its Subsidiaries subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any Subsidiary subsidiary of the Company. For purposes of this Agreement, "Lien" means, with respect to any ---- asset (includ- ingincluding, without limitation, any security) any option, claim, mortgage, lien, pledge, charge, security interest or encumbrance or restrictions of any kind in respect of such asset. (c) The Shares and the Rights constitute the only class of equity securities of the Company or any of its Subsidiaries registered or required to be registered under the Exchange Act. (d) 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 the Subsidiaries. (e) Other than as set forth on Section 6.2(e) of the Company Disclosure Schedule, there is no outstanding material Indebtedness (as hereinafter defined) of the Company or any of its Subsidiaries. Except as identified in Section 6.2(e) of the Company Disclosure Schedule, no such Indebtedness of the Company or its Subsidiaries contains any restriction upon (i) the prepayment of such Indebtedness, (ii) the incurrence of Indebtedness by the Company or its Subsidiaries, respectively, or (iii) the ability of the Company or its Subsidiaries to grant any liens on its properties or assets. For purposes of this Agreement, "Indebtedness" shall include (i) all indebtedness ------------ for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices, but excluding operating leases), (ii) any other indebtedness which is evidenced by a note, bond, debenture or similar instrument, (iii) all obligations under financing leases, (iv) all obligations in respect of acceptances issued or created, (v) all liabilities secured by any lien on any property, and (vi) all guarantee obligations. (f) Except for obligations incurred in connection with its incorporation or organization, or the negotiation and consummation of this Agreement and the Transactions, Acquisition Sub has not incurred any obligation or liability or engaged in any business or activity of any type or kind whatsoever or entered into any agreement or arrangement with any person or entity.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of: 20,000,000 shares 35,000,000 Shares, of Common Stock which, as of October 15, 1996, 20,959,260 Shares were issued and 1,000,000 outstanding, and 5,000,000 shares of preferred stock, par value $.001 0.001 per share (the "Company Preferred Stock"). As , of June 25which, 1998as of the date hereof, 5,173,077 --------------- Shares of Common Stock none 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 June 25October 15, 19981996, a total 2,782,116 Shares were reserved for issuance and issuable upon or otherwise deliverable in connection with the exercise of 1,016,129 outstanding Company Stock Options issued pursuant to the Company Plans, 78,813 Shares are 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 outstanding Stock Options 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 Company 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 Plans, of which (A) 65,321 Shares are have been designated as Series A Participating Preferred Stock and reserved for issuance pursuant to outstanding Stock Options under the Company's 1991 Stock Option Plan, (B) 476,004 Shares are reserved for issuance pursuant to outstanding Stock Options under the Company's 1995 Stock Option Plan, (C) 469,804 Shares are reserved for issuance 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 in connection with the exercise of Purchase Plan Options under the Company's 1996 Employee Stock Purchase Plan at a price Rights (as defined in Section 2.20). Except as set forth in Section 2.2(a) of $13.60 per Share. Since June 25the Company Disclosure Schedule, 1998since October 15, 1996, no shares of the Company's capital stock have been issued other than pursuant to stock options already in existence on such dateOctober 15, 1996, and since June 25, 1998, no stock options have been granted. Except as set forth above and except for or as set forth in Section 2.2(a) of the Rights toCompany Disclosure Schedule, among other things, purchase Series A Participating Preferred Stock issued pursuant to as of the Rights Agreementdate hereof, 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 securi- ties 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 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. (b) All of the outstanding capital stock of, or other ownership interests in, each Subsidiary of the Company, 's subsidiaries is owned by the Company, directly or indirectly, free and clear of any Lien (as hereinafter defineddefined below) or any other limitation or restriction (including any restriction on the right to vote or sell the same, except as may be provided as a matter of law). All such shares have been validly issued, fully paid and nonasessable, and have been issued free of preemptive rights. There are no securities of the Company or any of its Subsidiaries subsidiaries convertible into or exchangeable for, no options or other rights to acquire from the Company or any of its Subsidiariessubsidiaries, and no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of any capital stock or other ownership interests in, or any other securities of, any Subsidiary of the Company. There are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any Subsidiary of the Company. For purposes of this Agreement, "Lien" means, with respect to any ---- asset (includ- ing, without limitation, any security) any option, claim, mortgage, lien, pledge, charge, security interest or encumbrance or restrictions of any kind in respect of such asset. (c) The Shares and the Rights constitute the only class of equity securities of the Company or any of its Subsidiaries registered or required to be registered under the Exchange Act. (d) 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 the Subsidiaries. (e) Other than as set forth on Section 6.2(e) of the Company Disclosure Schedule, there is no outstanding material Indebtedness (as hereinafter defined) of the Company or any of its Subsidiaries. Except as identified in Section 6.2(e) of the Company Disclosure Schedule, no such Indebtedness of the Company or its Subsidiaries contains any restriction upon (i) the prepayment of such Indebtedness, (ii) the incurrence of Indebtedness by the Company or its Subsidiaries, respectively, or (iii) the ability of the Company or its Subsidiaries to grant any liens on its properties or assets. For purposes of this Agreement, "Indebtedness" shall include (i) all indebtedness ------------ for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices, but excluding operating leases), (ii) any other indebtedness which is evidenced by a note, bond, debenture or similar instrument, (iii) all obligations under financing leases, (iv) all obligations in respect of acceptances issued or created, (v) all liabilities secured by any lien on any property, and (vi) all guarantee obligations. (f) Except for obligations incurred in connection with its incorporation or organization, or the negotiation and consummation of this Agreement and the Transactions, Acquisition Sub has not incurred any obligation or liability or engaged in any business or activity of any type or kind whatsoever or entered into any agreement or arrangement with any person or entity.,