Common use of Capitalization of Parent Clause in Contracts

Capitalization of Parent. The authorized capital stock of Parent consists of 500,000,000 shares of Parent Common Stock and 50,000,000 shares of Preferred Stock, par value $.10 per share (“Parent Preferred Stock”). At the close of business on November 12, 2010, (i) 98,592,490 shares of Parent Common Stock were issued and outstanding, (ii) 3,811,766 shares of Parent Common Stock were held by Parent in its treasury, (iii) 2,810,140 shares of Parent Common Stock were reserved for issuance pursuant to options or other rights outstanding to acquire Parent Common Stock, (iv) 10,886,435 shares of Parent Common Stock were reserved for issuance upon conversion of Parent’s outstanding 4.25% Convertible Senior Notes due 2014 and (v) 5,000,000 shares of Parent Preferred Stock were reserved for issuance upon the exercise of previously outstanding rights to purchase shares of Parent Preferred Stock issued pursuant to the Rights Agreement, dated as of March 12, 1998 (the “Parent Rights Agreement”), between Parent and ChaseMellon Shareholder Services, L.L.C. As of the date of this Agreement, no shares of Parent Preferred Stock or preferred share purchase rights issuable pursuant to the Parent Rights Agreement are issued and outstanding. All outstanding shares of Parent Common Stock are and all shares of Parent Common Stock subject to issuance as specified above, 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. Each share of Parent Common Stock to be issued in connection with the Merger has been duly authorized and, when so issued, will be fully paid and nonassessable, and will not be subject to preemptive rights. None of Parent, Merger Sub or Merger Sub 2 owns any shares of Company Common Stock.

Capitalization of Parent. (a) The authorized capital stock of Parent consists of 500,000,000 7,500,000 shares of Parent Common Stock, $.02 par value, and 2,000,000 shares of preferred stock, $0.01 par value. Parent currently plans to call a special meeting of the stockholders to, among other things, authorize an increase of capital stock to allow for 50,000,000 shares of authorized Parent Common Stock. Schedule 4.7 lists, as of the date hereof: (i) the number of shares of Parent Common Stock outstanding, (ii) the number of shares of preferred stock outstanding, (iii) the number of shares of Parent Common Stock reserved for issuance upon the conversion of outstanding preferred stock and the exercise of outstanding options and outstanding warrants (including, without limitation, any preferred stock, options and warrants that Parent has agreed to issue subject to amending its Certificate of Incorporation to increase the amount of authorized capital stock), (iv) the additional number of shares of Parent Common Stock exchangeable for stock options that are authorized, but unissued, under any stock option plans of the Parent, and (v) the number of shares of Parent Common Stock proposed to be issued to raise the capital required to pay the aggregate Cash Consideration payable pursuant to the Merger and the related transaction described in Section 6.10 hereof. With respect to any outstanding options and warrants to acquire Parent Common Stock or other securities of Parent convertible into or exchangeable for Parent Common Stock, Schedule 4.7 accurately sets forth the holder, the number of shares covered, the exercise price, and the expiration date. With respect to any outstanding preferred stock of Parent, Schedule 4.7 accurately sets forth the holder, the number of shares owned by each holder, the basis upon which such shares may be converted into Parent Common Stock and the material terms of any put, call or similar rights with respect thereto. (b) All of the issued and outstanding shares of Parent Common Stock and 50,000,000 shares of Preferred Stock, par value $.10 per share (“Parent Preferred Stock”). At the close of business on November 12, 2010, (i) 98,592,490 shares of other securities convertible into or exchangeable for Parent Common Stock were or other capital stock of Parent have been duly authorized and validly issued and outstandingare fully paid, nonassessable and free of preemptive rights. (iic) 3,811,766 The shares of Parent Common Stock were held by Parent in its treasury, (iii) 2,810,140 shares of Parent Common Stock were reserved for issuance pursuant to options or other rights outstanding to acquire Parent Common Stock, (iv) 10,886,435 shares of Parent Common Stock were reserved for issuance upon conversion of Parent’s outstanding 4.25% Convertible Senior Notes due 2014 and (v) 5,000,000 shares of Parent Preferred Stock were reserved for issuance upon the exercise of previously outstanding rights to purchase shares of Parent Preferred Stock issued pursuant to the Rights Agreement, dated as of March 12, 1998 (the “Parent Rights Agreement”), between Parent and ChaseMellon Shareholder Services, L.L.C. As of the date of this Agreement, no shares of Parent Preferred Stock or preferred share purchase rights issuable pursuant to the Parent Rights Agreement are issued and outstanding. All outstanding shares of Parent Common Stock are and all shares of Parent Common Stock subject to issuance as specified above, 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. Each share of Parent Common Stock to be issued in the Merger will be duly authorized and validly issued and will be fully paid, nonassessable shares of Parent Common Stock free of preemptive rights. (d) To Parent's knowledge, there are no voting trusts, stockholder agreements or other voting arrangements between or among the stockholders of Parent. (e) Except as set forth in subsection (a) above or Schedule 4.7(e), no equity security of Parent is or may be required to be issued by reason of any option, warrant, scrip, preemptive right, right to subscribe to, call or commitment of any character whatsoever relating to, or security or right convertible into, any shares of capital stock of Parent, and there are no contracts, commitments, understandings or arrangements by which Parent is bound to issue additional shares of its capital stock, or any option, warrant or right to purchase or acquire any additional shares of its capital stock (f) Except as reported in the Parent SEC Reports or in connection with the spin- off of Equitex 2000, Inc., since December 31, 1999, no shares of capital stock have been purchased, redeemed or otherwise reacquired, directly or indirectly, by Parent or the Merger has Subsidiary and no dividends or other distributions have been duly authorized anddeclared, when so issuedset aside, will be fully made or paid and nonassessable, and will not be subject to preemptive rights. None the stockholders of Parent, Merger Sub or Merger Sub 2 owns any shares of Company Common Stock.

Capitalization of Parent. (a) (i) The authorized capital stock of Parent consists of 500,000,000 400,000,000 shares of Parent Common Stock and 50,000,000 2,000,000 shares of Preferred Stockpreferred stock, par value $.10 .01 per share (“"Parent Preferred Stock”)") . At As of the close of business on November 12, 2010, Capitalization Date: (i) 98,592,490 59,825,008 shares of Parent Common Stock were issued and outstanding, ; (ii) 3,811,766 25,332,273 shares of Parent Common Stock were held by subject to outstanding options issued pursuant to Parent's stock option plans (collectively, the "Parent in its treasury, Stock Option Plans" ); and (iii) 2,810,140 11,688,276 shares of Parent Common Stock were reserved for issuance pursuant to options or other rights outstanding to acquire Parent Common Stock, (iv) 10,886,435 shares issued and held in the treasury of Parent Common Stock were reserved for issuance upon conversion of the Parent’s outstanding 4.25% Convertible Senior Notes due 2014 and (v) 5,000,000 shares of Parent Preferred Stock were reserved for issuance upon the exercise of previously outstanding rights to purchase shares of Parent Preferred Stock issued pursuant to the Rights Agreement, dated as of March 12, 1998 (the “Parent Rights Agreement”), between Parent and ChaseMellon Shareholder Services, L.L.C. . As of the date of this Agreementhereof, no shares of Parent Preferred Stock or preferred share purchase rights issuable are issued and outstanding and 100,000 shares of Parent Preferred Stock are reserved for issuance upon exercise of the Parent Rights pursuant to the Parent Rights Agreement are issued and outstandingAgreement. All outstanding From the Capitalization Date through the date hereof, there have been no issuances of shares of the capital stock or other securities of the Parent or of options, warrants or rights with respect to shares of Parent Common Stock are and all or other securities of Parent other than issuances of shares of Parent Common Stock subject pursuant to issuance the exercise of options outstanding or the Capitalization Date as specified abovefully reflected in Section 4.2 of the Parent Disclosure Schedule. All the outstanding Shares of Parent Common Stock are, upon issuance on and all shares to be issued as part of the Merger Consideration will be, when issued in accordance with the terms and conditions specified in the instruments pursuant to which they are issuablehereof, will be duly authorized, validly issued, fully paid and nonassessablenon-assessable. Each share Except as set forth above, and except for the transactions contemplated by this Agreement and Parent's obligations under the Parent Rights Agreement, as of the date of this Agreement (1) there are no shares of capital stock of Parent Common Stock authorized, issued or outstanding, (2) there are no authorized or outstanding options, warrants, calls, preemptive rights, subscriptions or other rights, agreements, arrangements or commitments of any character (whether or not conditional) relating to the issued or unissued capital stock of Parent or any of its subsidiaries, obligating Parent or any of its subsidiaries to issue, transfer or sell or cause to be issued in connection with the Merger has been duly authorized and, when so issued, will be fully paid and nonassessable, and will not be subject to preemptive rights. None of Parent, Merger Sub transferred or Merger Sub 2 owns sold any shares of Company Common Stockcapital stock or other equity interest in Parent or any of its subsidiaries or securities convertible into or exchangeable for such shares or equity interests, or obligating Parent or any of its subsidiaries to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement, arrangement or commitment and (3) there are no outstanding contractual obligations of Parent or any of its subsidiaries to repurchase, redeem or otherwise acquire any capital stock of Parent or any of its subsidiaries, or to make any payments based on the market price or value of shares or other capital stock of the Parent or its subsidiaries, or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any subsidiary or any other entity other than loans to subsidiaries in the ordinary course of business.

Capitalization of Parent. The entire authorized capital stock and other equity securities of Parent consists of 500,000,000 of: (i) 415,384,500 shares of common stock with a par value of $0.001 (the “Parent Common Stock and 50,000,000 Stock”); (ii) 100,000,000 shares of Preferred Stock, preferred stock with a par value of $.10 per share 0.001 (the “Parent Preferred Stock”). At the close of business on November 12, 2010, ; (iiii) 98,592,490 options to purchase 19,000,000 shares of Parent Common Stock were issued (the “Parent Options”); and outstanding, (iiiv) 3,811,766 warrants to purchase 5,000,000 shares of Parent Common Stock were held by Parent in its treasury, (iii) 2,810,140 shares of Parent Common Stock were reserved for issuance pursuant to options or other rights outstanding to acquire Parent Common Stock, (iv) 10,886,435 shares of Parent Common Stock were reserved for issuance upon conversion of Parent’s outstanding 4.25% Convertible Senior Notes due 2014 and (v) 5,000,000 shares of Parent Preferred Stock were reserved for issuance upon the exercise of previously outstanding rights to purchase shares of Parent Preferred Stock issued pursuant to the Rights Agreement, dated as of March 12, 1998 (the “Parent Rights AgreementWarrants”), between Parent and ChaseMellon Shareholder Services, L.L.C. . As of the date of this Agreement, no there are: (i) 95,108,887 shares of Parent Preferred Common Stock or preferred share purchase rights issuable pursuant to the Parent Rights Agreement are issued and outstanding; (ii) one share of Parent Preferred Stock, designated as a Series A Special Voting Share issued and outstanding; (iii) 18,248,674 Parent Options outstanding and unexercised; and (iv) 5,000,000 Parent Warrants outstanding and unexercised. In addition, there are 1,849,180 preferred shares of 6789722 Canada Inc., a subsidiary of Parent, which are exchangeable into 1,849,180 common shares of Parent (the “Exchangeable Shares”). All of the issued and outstanding shares of Parent Common Stock and Parent Preferred Stock have been duly authorized, are validly issued, were not issued in violation of any pre-emptive rights and are fully paid and non-assessable, are not subject to pre-emptive rights and were issued in full compliance with all federal, state, and local laws, rules and regulations. Except for the Parent Common Stock, Parent Preferred Stock, Parent Options, Parent Warrants and Exchangeable Shares, there are no outstanding options, warrants, subscriptions, conversion rights, or other rights, agreements, or commitments obligating Parent to issue any additional shares of Parent Common Stock subject Stock, or any other securities convertible into, exchangeable for, or evidencing the right to issuance as specified above, 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. Each share subscribe for or acquire from Parent any shares of Parent Common Stock Stock. There are no agreements purporting to be restrict the transfer of any of the issued in connection with the Merger has been duly authorized and, when so issued, will be fully paid and nonassessable, and will not be subject to preemptive rights. None outstanding shares of Parent, Merger Sub no voting agreements, shareholders’ agreements, voting trusts, or Merger Sub 2 owns other arrangements restricting or affecting the voting of any of the shares of Company Common StockParent to which Parent is a party or of which Parent is aware.

Capitalization of Parent. The (a) As of the date hereof and until the Effective Time, the authorized capital stock of Parent consists solely of 500,000,000 (i) 320,000,000 shares of Parent Common Stock and 50,000,000 shares of Preferred Stock, par value $.10 0.01 per share (“Parent Preferred Stock”). At the close of business on November 12share, 2010, (i) 98,592,490 shares of Parent Common Stock were issued and outstanding, (ii) 3,811,766 shares of Parent Common Stock were held by Parent in its treasury, (iii) 2,810,140 shares of Parent Common Stock were reserved for issuance pursuant to options or other rights outstanding to acquire Parent Common Stock, (iv) 10,886,435 shares of Parent Common Stock were reserved for issuance upon conversion of Parent’s outstanding 4.25% Convertible Senior Notes due 2014 and (v) 5,000,000 shares of Parent Preferred Stock were reserved for issuance upon the exercise preferred stock of previously outstanding rights to purchase shares of Parent Preferred Stock issued pursuant to the Rights AgreementParent, dated as of March 12, 1998 (the “Parent Rights Agreement”), between Parent and ChaseMellon Shareholder Services, L.L.C. par value $1.00 per share. As of the date of this Agreement, the only issued and outstanding capital stock or other equity interests of Parent are (i) 162,490,166 shares of Parent Common Stock, (ii) no shares of preferred stock of Parent Preferred Stock or preferred share purchase rights issuable pursuant to the Parent Rights Agreement are issued and were outstanding. All outstanding , (iii) 1,826,745 shares of Parent Common Stock are and all were subject to outstanding Parent Restricted Stock Unit Awards, (iv) 600,106 shares of Parent Common Stock were subject to issuance as specified above, upon issuance on the terms outstanding Parent Performance Share Unit Awards and conditions specified in the instruments pursuant (v) 7,697 shares of Parent Common Stock vested yet to which they be awarded. (b) All outstanding shares of capital stock of Parent are issuable, will be duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to any preemptive rights. Each share of The New Parent Common Stock to be issued pursuant to this Agreement, when issued in connection accordance with the Merger has been duly authorized and, when so issuedterms hereof, will be validly issued, fully paid and nonassessable, nonassessable and will not be subject to preemptive rights. None The New Parent Common Stock to be issued pursuant to this Agreement, when issued in accordance with the terms hereof, will be issued in compliance in all material respects with applicable Laws. Except as set forth on Parent Disclosure Schedule 5.5(b), or as identified in the Parent SEC Documents filed or furnished on or prior to the date of this Agreement, and except for changes after the date hereof in compliance with Section 6.6(b)(i), there are no outstanding or authorized other shares of capital stock or equity securities of Parent, Merger Sub options, warrants, convertible or Merger Sub 2 owns exchangeable securities, subscriptions, rights (including any shares preemptive rights), calls, phantom equity, profit sharing agreements or commitments or other agreements of Company Common Stockany character whatsoever relating to any equity or voting interest in Parent requiring the issuance, delivery or sale of any equity or voting interest of Parent. Parent has no authorized or outstanding bonds, debentures, notes or other indebtedness that afford the holders thereof the right to vote (or any instrument convertible into, exchangeable for, or evidencing the right to subscribe for or acquire securities having the right to vote) on any matter relating to Parent. There are no Contracts to which Parent is a party or by which it is bound to (i) repurchase, redeem or otherwise acquire any equity or voting interest in Parent, or (ii) vote or dispose of any equity or voting interest in Parent. To the Knowledge of Parent, there are no irrevocable proxies and no voting agreements with respect to any equity or voting interest in Parent or any Significant Subsidiary. No Person has any right of first offer, right of first refusal or preemptive right in connection with any future offer, sale or issuance of any equity or voting interest in, Parent.

Capitalization of Parent. The authorized capital stock of Parent consists solely of 500,000,000 shares of 50,000,000 Parent Common Stock Shares and 50,000,000 shares of Preferred Stock, par value $.10 per share (“Parent Preferred Stock”). At the close of business on November 12, 2010, (i) 98,592,490 shares of Parent Common Stock were issued and outstanding, (ii) 3,811,766 shares of Parent Common Stock were held by Parent in its treasury, (iii) 2,810,140 shares of Parent Common Stock were reserved for issuance pursuant to options or other rights outstanding to acquire Parent Common Stock, (iv) 10,886,435 shares of Parent Common Stock were reserved for issuance upon conversion of Parent’s outstanding 4.25% Convertible Senior Notes due 2014 and (v) 5,000,000 1,000,000 shares of Parent Preferred Stock were reserved for issuance upon the exercise Stock. A total of previously outstanding rights to purchase shares 5,311,428 of Parent Preferred Stock issued pursuant to the Rights Agreement, dated as of March 12, 1998 (the “Parent Rights Agreement”), between Parent Common Shares and ChaseMellon Shareholder Services, L.L.C. As of the date of this Agreement, no shares of Parent Preferred Stock or preferred share purchase rights issuable pursuant to the Parent Rights Agreement are issued and outstandingoutstanding as of the Agreement Date. All outstanding Warrants to purchase a total of 1,450,336 shares of Parent Common Stock Shares are outstanding as of the Agreement Date. Parent holds no treasury shares. All issued and all shares of outstanding Parent Common Stock subject to issuance as specified above, upon issuance on the terms Shares have been duly authorized and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. Each share of Parent Common Stock to be issued in connection with the Merger has been duly authorized and, when so issued, will be are fully paid and nonassessable, and will not be have been offered, issued, sold and delivered by Parent in compliance with all requirements of Applicable Law and all requirements set forth in applicable Contracts to which Parent is a party. There is no Liability for dividends accrued and unpaid by Parent. As of the Agreement Date, the Parent has reserved an aggregate of 3,536,233 shares of Parent Common Shares for issuance pursuant to the Parent Option Plans. A total of 3,190,217 shares of Parent Common Shares are subject to outstanding Parent Options as of the Agreement Date. (a) All issued and outstanding shares of Parent Common Shares have been duly authorized and validly issued, are fully paid and nonassessable, were not issued in violation of and are not subject to any right of rescission, right of first refusal or preemptive rights. None right, and have been offered, issued, sold and delivered by the Parent in compliance with all requirements of Applicable Law. (b) Except as set forth in this Section 4.3, there are (i) no outstanding shares of capital stock of, or other equity or voting interest in, Parent, (ii) no outstanding securities of Parent convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, Parent, (iii) no outstanding options, warrants, rights or other commitments or agreements to acquire from Parent, or that obligates Parent to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, Parent, (iv) no obligations of Parent to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, Parent and (v) no other obligations by Parent or any of its Subsidiaries to make any payments based on the price or value of any securities of Parent. Except as otherwise described in this Section 4.3, Merger Sub there are no outstanding agreements of any kind which obligate Parent or Merger Sub 2 owns any shares of Company Common Stockits Subsidiaries to repurchase, redeem or otherwise acquire any securities of Parent.

Capitalization of Parent. The total authorized capital stock of ------------------------ Parent consists is 100,000,000 shares of 500,000,000 Parent Common Stock, of which 16,359,446 shares are issued and outstanding and none of which are held in the treasury of Parent, 50,000,000 shares of Parent preferred stock, $.001 par value, of which 45,137 shares of Series A Preferred Stock are issued and outstanding. The outstanding shares of Parent Common Stock and 50,000,000 shares Parent preferred stock have been duly and validly issued and are fully paid and non-assessable and were issued free of Preferred Stockpreemptive rights except for the anti-dilution rights available to the ▇▇▇▇ Group (as such term is defined in that certain Amended and Restated Shareholders Agreement ("Shareholders Agreement") dated April 30, par value $.10 per share 1997, by and among Parent and the Shareholders (“Parent Preferred Stock”as such term is defined in the Shareholders Agreement)) under the Shareholders Agreement (the "▇▇▇▇ Rights"). At the close of business on November 12, 2010, (i) 98,592,490 The shares of Parent Common Stock were issued to the Stockholders at the Closing (and outstanding, (ii) 3,811,766 any additional shares of Parent Common Stock were held by Parent in its treasury, (iii) 2,810,140 shares of Parent Common Stock were reserved for issuance issued to the Stockholders pursuant to options or other rights outstanding to acquire Parent Common Stock, (ivSection 4.10) 10,886,435 shares of Parent Common Stock were reserved for issuance upon conversion of Parent’s outstanding 4.25% Convertible Senior Notes due 2014 and (v) 5,000,000 shares of Parent Preferred Stock were reserved for issuance upon the exercise of previously outstanding rights to purchase shares of Parent Preferred Stock issued pursuant to the Rights Agreement, dated as of March 12, 1998 (the “Parent Rights Agreement”), between Parent and ChaseMellon Shareholder Services, L.L.C. As of the date of this Agreement, no shares of Parent Preferred Stock or preferred share purchase rights issuable pursuant to the Parent Rights Agreement are issued and outstanding. All outstanding shares of Parent Common Stock are and all shares of Parent Common Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will shall be duly authorized, and validly issued, fully paid and nonassessablenon-assessable and free of all preemptive rights except for the ▇▇▇▇ Rights. Each share At the Closing, the shares of Parent Common Stock issued to be issued in connection with the Merger has been duly authorized and, when so issued, will be fully paid and nonassessable, and will not be subject to preemptive rightsStockholders shall constitute 5% of the Parent Common Stock on a fully-diluted basis. None Except as set forth on Schedule 3.2 of Parent's Disclosure Schedule, Merger Sub neither Parent nor any of Parent's Subsidiaries has granted any option, warrant, subscription or Merger Sub 2 owns similar right to any person or entity to purchase or acquire any rights with respect to any shares of Company Common Stockcapital stock or equity interests of Parent or Parent's Subsidiaries.