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 Fifty-Two Million (52,000,000) Shares, of which, as of September 30, 1999, Twenty-Seven Million Four Hundred Eighty-Six Thousand Six Hundred Fifty-Nine (27,486,659) Shares were issued and outstanding and Two Million (2,000,000) shares of preferred stock, none of which is outstanding. All of the outstanding Shares have been validly issued and are fully paid, nonassessable and free of preemptive rights. As of September 30, 1999, approximately Three Million One Hundred Nine Thousand Six Hundred Sixty-One (3,109,661) Shares were reserved for issuance and, as of September 30, 1999, approximately Six Million Four Hundred Twenty-Six Thousand Eight Hundred Fifty-Two (6,426,852) were issuable upon or otherwise deliverable in connection with the exercise of outstanding Company Stock Options issued pursuant to the Company Plans and the Stock Purchase Plan. The maximum number of shares that may be issued under the Stock Purchase Plan is Seven Hundred Thousand (700,000) shares, of which, as of October 1, 1999, approximately Two Hundred Ninety-Four Thousand Seventy (294,070) shares have been issued and Four Hundred Five Thousand Nine Hundred Thirty (405,930) shares are reserved for issuance. Between September 30, 1999 and the date hereof, no shares of the Company's capital stock have been issued other than pursuant to Company Stock Options already in existence on such first date, and between September 30, 1999 and the date hereof, no stock options have been granted. Except (i) as set forth above, (II) for the Company's 4.75% Convertible Subordinated Notes Due 2002 (the "Subordinated Notes") issued pursuant to the Indenture dated as of August 15, 1997, by and between the Company and Deutsche Bank AG, New York Branch (the "Indenture") and (III) for the rights (the "Company Rights") issued pursuant to the Company's Rights Agreement, dated as of November 19, 1998, between the Company and Harrxx Xxxst and Savings Bank (the "Company Rights Agreement"), 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 any of its subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or other securities of the Company, (iii) no options, preemptive or other rights to acquire from the Company or any of its subsidiaries, and, except as described in the Company SEC Reports (as defined below), no obligations of the Company or any of its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other securities of the Company and (iv) no equity equivalent interests in the ownership or earnings of the Company or its subsidiaries or other similar rights (collectively "Company Securities"). Except as set forth in Section 2.2(a) of the Company Disclosure Schedule, as of the date hereof, there are no outstanding rights or obligations of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting or registration of any shares of capital stock of the Company. The Company has not voluntarily accelerated the vesting of any Company Stock Options as a

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists solely of Fifty-Two (i) Three Hundred and Fifty Million (52,000,000350,000,000) Sharesshares of authorized Company Common Stock, of whichwhich Eleven Million Nine Hundred Forty-Four Thousand Nine Hundred Forty-One (11,944,941) shares are issued and outstanding on the date hereof, as and (ii) One Hundred Seventy-One Million Six Hundred Seventy-Eight Thousand Three Hundred Thirty (171,678,330) shares of September 30authorized preferred stock, 1999, Twenty-Seven of which (v) Five Million Four One Hundred EightySixty-Six Thousand Six Hundred Fiftyand Sixty-Nine Five (27,486,6595,166,665) Shares were shares have been authorized and designated as the Series A Preferred Stock, Five Million One Hundred Thirty-Three Thousand Three Hundred Thirty-Two (5,133,332) shares of which are issued and outstanding and on the date hereof, (2) Four Million Two Million (2,000,000) shares of preferred stock, none of which is outstanding. All of the outstanding Shares have been validly issued and are fully paid, nonassessable and free of preemptive rights. As of September 30, 1999, approximately Three Million One Hundred Nine Eleven Thousand Six Hundred Sixty-Five (4,211,665) shares have been authorized and designated as the Series B Preferred Stock, Four Million One Hundred Sixty-Six Thousand Six Hundred Sixty-Five (3,109,6614,166,665) shares of which are issued and outstanding on the date hereof, (x) Twelve Million Three Hundred Thousand (12,300,000) shares have been authorized and designated as the Series C Preferred Stock, Eleven Million Three Hundred Sixty-Two Thousand Seventy-Two (11,362,072) shares of which are issued and outstanding on the date hereof, (y) One Hundred and Fifty Million (150,000,000) shares have been authorized and designated as the Series D Preferred Stock, none of which are issued and outstanding on the date hereof, and (z) no other shares have been authorized or designated as a series or are issued and outstanding as the date hereof. (b) All outstanding Shares are duly authorized, validly issued, fully paid and non-assessable, and not subject to preemptive rights created by statute, the Articles of Incorporation or Bylaws of the Company, any agreement to which the Company is a party or by which it is bound or otherwise. As of the date hereof, an aggregate of 59,513,584 shares of Common Stock were reserved for issuance and, as of September 30, 1999, approximately Six Million Four Hundred Twenty-Six Thousand Eight Hundred Fifty-Two (6,426,852) were and 25,439,000 are issuable upon or otherwise deliverable in connection with the exercise of outstanding Company Stock Options issued pursuant to the Company Plans and the Stock Purchase Plan. The maximum number of shares that may be issued under the Stock Purchase Plan is Seven Hundred Thousand (700,000) shares, of which, as of October 1, 1999, approximately Two Hundred Ninety-Four Thousand Seventy (294,070) shares have been issued and Four Hundred Five Thousand Nine Hundred Thirty (405,930) shares are reserved for issuance. Between September 30, 1999 and the date hereof, no shares of the Company's capital stock have been issued other than pursuant to Company Stock Options already in existence on such first date, and between September 30, 1999 and the date hereof, no stock options have been grantedOptions. Except (i) as set forth above, (II) for the Company's 4.75% Convertible Subordinated Notes Due 2002 (the "Subordinated Notes") issued pursuant to the Indenture dated as of August 15, 1997, by and between the Company and Deutsche Bank AG, New York Branch (the "Indenture") and (III) for the rights (the "Company Rights") issued pursuant to the Company's Rights Agreement, dated as of November 19, 1998, between the Company and Harrxx Xxxst and Savings Bank (the "Company Rights Agreement"), as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of the Company, Company and (ii) no securities (including options and warrants) or other contractual obligations of the Company or any of its subsidiaries Subsidiaries directly or indirectly convertible into into, or exchangeable or exercisable for for, shares of capital stock or other voting securities of the Company, (iii) no options, preemptive or other rights to acquire from the Company or any of its subsidiaries, and, except as described in the Company SEC Reports (as defined below), no obligations of the Company or any of its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other securities Subsidiaries. All of the Company outstanding Shares and Options (iv) no equity equivalent interests in collectively, the ownership or earnings of the Company or its subsidiaries or other similar rights (collectively "“Company Securities"). Except as set forth ”) were issued in Section 2.2(a) compliance with the Securities Act of the Company Disclosure Schedule1933, as of amended (the date hereof“Securities Act”), there and applicable state securities laws. There are no outstanding rights or obligations of the Company or any of its subsidiaries Subsidiary to repurchase, redeem or otherwise acquire any Company SecuritiesSecurities except for rights of the Company to repurchase unvested shares or cancel unvested options issued to employees and consultants in the event of their termination. There Except as set forth in Section 2.2(b) of the Disclosure Letter, there are no stockholder shareholder agreements, voting trusts or other agreements or understandings arrangements to which the Company is a party or by which it is bound bound, and to its knowledge (except for the Voting Agreements) there are no other agreements, voting trusts or other arrangements or understandings, relating to the voting or registration of any shares of capital stock or other voting securities of the CompanyCompany or any Subsidiary. The No Company Securities are owned by the Company or any Subsidiary. Each stock option issued by the Company that has not voluntarily accelerated purported to be an “incentive stock option” has at all times while such option was outstanding qualified as an “incentive stock option” as such term is defined in Section 422 of the vesting Internal Revenue Code of any Company Stock Options 1986, as aamended (the “Code”), and at all times prior to the exercise or cancellation thereof was held by a person whose exercise of such stock option would be governed by Section 421(a) of the Code (determined without regard to Section 422(a)(1) of the Code).

Capitalization of the Company and its Subsidiaries. (a) The -------------------------------------------------- authorized capital stock of the Company consists of FiftyTwenty-Two Five Million (52,000,00025,000,000) Sharesshares of Company Common Stock, of which, as of September 30, 1999, Twenty-Seven which Eight Million Four Hundred Eighty-Six Thousand Six Hundred Fifty-Nine Fifty Five Thousand Eight Hundred and Seventy (27,486,6598,655,870) Shares were issued and outstanding as of the date hereof, and Two Four Million Five Hundred Sixteen Thousand Ninety-Four (2,000,0004,516,094) shares of preferred stockSeries A Preferred Stock, none of which is outstandingFour Million Three Hundred Ninety-One Thousand Five Hundred Fifty-Six (4,391,556) are issued and outstanding as of the date hereof, and Six Million Seven Hundred Fifty Thousand (6,750,000) shares of Series B Preferred Stock, of which Three Million Two Hundred Eighty-Nine Thousand Eight Hundred Ninety-Eight (3,289,898) shares were issued and outstanding as of the date hereof. All of the outstanding Shares shares of Company Common Stock and Preferred Stock have been validly issued and are fully paid, nonassessable and free of preemptive rights. After giving effect to the conversion of the Preferred Stock and, assuming no exercise of outstanding Company Stock Options, there will be Sixteen Million Three Hundred Thirty Seven Thousand Three Hundred and Twenty Four (16,337,324) Shares issued and outstanding. Each share of Preferred Stock is convertible into one share of Company Common Stock. As of September 30the date hereof, 1999, approximately Three Two Million One Hundred Nine and Seventy Four Thousand Six Three Hundred Sixty-One and Nineteen (3,109,6612,174,319) Shares were reserved for issuance and, as of September 30, 1999, approximately Six Million Four Hundred Twenty-Six Thousand Eight Hundred Fifty-Two (6,426,852) and were issuable upon or otherwise deliverable in connection with the exercise of outstanding Company Stock Options issued pursuant to the Company Plans and the Stock Purchase PlanPlans. The maximum number As of shares that may be issued under the Stock Purchase Plan is Seven Hundred Thousand (700,000) shares, of which, as of October 1, 1999, approximately Two Hundred Ninety-Four Thousand Seventy (294,070) shares have been issued and Four Hundred Five Thousand Nine Hundred Thirty (405,930) shares are reserved for issuance. Between September 30, 1999 and the date hereof, no shares of the Company's capital stock have been issued other than pursuant to there were outstanding Eight Hundred and Eighty-Four Thousand (884,000) Company Stock Options already and five (5) warrants of the Company to purchase an aggregate of One Hundred Ninety-Six Thousand Three Hundred Fifty-Nine (196,359) shares of Preferred Stock. The outstanding Shares, Company Stock Options and warrants of the Company are owned of record by those Persons, in existence the amounts, at the exercise price and on such first datethe vesting schedule, and between September 30, 1999 and the date hereof, no stock options have been granted. Except (i) all as set forth above, (II) for the Company's 4.75% Convertible Subordinated Notes Due 2002 (the "Subordinated Notes") issued pursuant to the Indenture dated as in Section 2.2 of August 15, 1997, by and between the Company and Deutsche Bank AG, New York Branch (the "Indenture") and (III) for the rights (the "Company Rights") issued pursuant to the Company's Rights Agreement, dated Disclosure Letter. Except as set forth above or in Section 2.2 of November 19, 1998, between the Company and Harrxx Xxxst and Savings Bank (the "Company Rights Agreement"), as of the date hereofDisclosure Letter, 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 or exercisable for shares of capital stock or other voting securities of the Company, (iii) no options, preemptive options or other rights to acquire from the Company or any of its subsidiariesCompany, and, except as described in the Company SEC Reports (as defined below), and no obligations of the Company or any of its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other voting securities of the Company and (iv) no equity equivalent interests in the ownership or earnings of the Company or its subsidiaries or other similar rights (collectively "Company Securities"). Except as set forth in Section 2.2(a) 2.2 of the Company Disclosure ScheduleLetter, as of the date hereof, there are no outstanding rights or obligations of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. There Securities and there are no stockholder shareholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting or registration of any shares of capital stock of the Company. The Company has not voluntarily accelerated the vesting of any Company Stock Options as a.

Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of Fifty-Two Million (52,000,000) Shares, of which, as of September 30, 1999, Twenty-Seven Million Four Hundred Eighty-Six Thousand Six Hundred Fifty-Nine (27,486,659) Shares were issued and outstanding and Two Million (2,000,000) shares of preferred stock, none of which is outstanding. All of the outstanding Shares have been validly issued and are fully paid, nonassessable and free of preemptive rights. As of September 30, 1999, approximately Three Million One Hundred Nine Thousand Six Hundred Sixty-One (3,109,661) Shares were reserved for issuance and, as of September 30, 1999, approximately Six Million Four Hundred Twenty-Six Thousand Eight Hundred Fifty-Two (6,426,852) were issuable upon or otherwise deliverable in connection with the exercise of outstanding Company Stock Options issued pursuant to the Company Plans and the Stock Purchase Plan. The maximum number of shares that may be issued under the Stock Purchase Plan is Seven Hundred Thousand (700,000) shares, of which, as of October 1, 1999, approximately Two Hundred Ninety-Four Thousand Seventy (294,070) shares have been issued and Four Hundred Five Thousand Nine Hundred Thirty (405,930) shares are reserved for issuance. Between September 30, 1999 and the date hereof, no shares of the Company's capital stock have been issued other than pursuant to Company Stock Options already in existence on such first date, and between September 30, 1999 and the date hereof, no stock options have been granted. Except (i) as set forth above, (II) for the Company's 4.75% Convertible Subordinated Notes Due 2002 (the "Subordinated Notes") issued pursuant to the Indenture dated as of August 15, 1997, by and between the Company and Deutsche Bank AG, New York Branch (the "Indenture") and (III) for the rights (the "Company Rights") issued pursuant to the Company's Rights Agreement, dated as of November 19, 1998, between the Company and Harrxx Xxxst Xxxxxx Trust and Savings Bank (the "Company Rights Agreement"), 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 any of its subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or other securities of the Company, (iii) no options, preemptive or other rights to acquire from the Company or any of its subsidiaries, and, except as described in the Company SEC Reports (as defined below), no obligations of the Company or any of its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other securities of the Company and (iv) no equity equivalent interests in the ownership or earnings of the Company or its subsidiaries or other similar rights (collectively "Company Securities"). Except as set forth in Section 2.2(a) of the Company Disclosure Schedule, as of the date hereof, there are no outstanding rights or obligations of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting or registration of any shares of capital stock of the Company. The Company has not voluntarily accelerated the vesting of any Company Stock Options as aa result of the Merger or any other change in control of the Company. No Shares are held by the Company's subsidiaries. (b) All of the outstanding capital stock of the Company's subsidiaries owned by the Company is owned, directly or indirectly, free and clear of any Lien 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 Applicable Law). Except for the Subordinated Notes and as set forth in Section 2.2(b) of the Company Disclosure Schedule, there are no (i) securities of the Company or any of its subsidiaries convertible into or exchangeable or exercisable for, (ii) options or (iii) except for the Company Rights, other rights to acquire from the Company or any of its subsidiaries any capital stock or other ownership interests in or any other securities of any subsidiary of the Company, and there exists no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of any such capital stock. There are no outstanding contractual obligations 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.