Company Shares If the managing underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account or for the account of others in such registration if the managing underwriter so agrees and if the number of Registrable Securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
Parent Shares All outstanding Parent Shares, and all Parent Shares, which may be issued pursuant to this Agreement shall when issued in accordance with this Agreement be, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights.
Company Options As of the Transaction Effective Time, by virtue of the Transaction Merger, each Company Option that is outstanding and unexercised immediately prior to the Transaction Effective Time, shall be assumed by the Purchaser and shall be converted into a right (an “Adjusted Option”) to acquire Purchaser Common Stock in accordance with this Section 2.8(d). Each such Adjusted Option as so assumed and converted shall continue to have, and shall be subject to, the same terms and conditions as applied to the Company Option immediately prior to the Transaction Effective Time, including the same vesting schedule as the applicable Company Option (and no Company Option shall have its vesting accelerated in connection with the consummation of the transactions contemplated by this Agreement) (provided, that no Adjusted Options shall be exercisable prior to the earlier to occur of (i) the one (1) year anniversary of the Closing Date or (ii) sixty (60) days after the Company Option holder’s termination of employment or termination of service with the Purchaser and its “affiliates” (within the meaning of the Company Stock Plan)), except that as of the Transaction Effective Time, the Adjusted Option as so assumed and converted shall be exercisable for that number of whole shares of Purchaser Common Stock (rounded down to the nearest whole share) equal to the product of (x) the number of shares of Company Common Stock subject to such Company Option multiplied by (y) the Exchange Ratio, at an exercise price per share of Purchaser Common Stock (rounded up to the nearest whole cent) equal to the quotient of (a) the exercise price per share of Company Common Stock of such Company Option, divided by (b) the Exchange Ratio; provided that the exercise price and/or the number of shares of Purchaser Common Stock that may be purchased under the Adjusted Option shall be further adjusted to the extent required to remain compliant with, or exempt from, the requirements of Section 409A of the Code; and provided further, that in the case of Company Options that are intended to qualify as incentive stock options within the meaning of Section 422 of the Code, the exercise price and the number of shares of Purchaser Common Stock subject to the Adjusted Option shall be determined in a manner consistent with the requirements of Section 424 of the Code and the Department of Treasury Regulations issued thereunder. Further, with respect to three percent (3%) of the shares which can be acquired under each Adjusted Option (such 3%, the “Reserved Portion”), in addition to the above-described exercisability restrictions applicable to the Adjusted Option, the Reserved Portion shall (A) in no event be exercisable until after the Expiration Date, (B) immediately after 11:59 p.m. New York City time on the Expiration Date, the Reserved Portion shall be forfeited in the same proportion that the number of Escrow Shares that are not released from the Escrow Account to the Exchange Agent for distribution to Company Holders, net of the number of Escrow Shares retained for Pending Claims, bears to the aggregate number of Escrow Shares deposited in the Escrow Account at the Closing (subject to equitable adjustment for stock dividends, recapitalizations, stock exchanges and other similar transactions) and (C) with respect to the portion of the Reserved Portion equal to the number of Escrow Shares retained after the Expiration Date for Pending Claims divided by the aggregate number of Escrow Shares deposited in the Escrow Account at the Closing (subject to equitable adjustment for stock dividends, recapitalizations, stock exchanges and other similar transactions) (the “Pending Reserved Portion”), (I) such Pending Reserved Portion shall continue to not be exercisable until after the final resolution of all Pending Claims, and (II) upon the final resolution of all Pending Claims, the Pending Reserved Portion shall be forfeited in the same proportion that the number of Escrow Shares that were retained for Pending Claims that are not released from the Escrow Account to the Exchange Agent for distribution to Company Holders (or, to the extent required by Section 2.9(h), to the Purchaser for distribution to such Company Holders) bears to the aggregate number of Escrow Shares that were retained for Pending Claims. For the avoidance of doubt, the period of exercisability of an Adjusted Option, including the Reserved Portion, shall not be extended. For purposes of this Agreement, “Exchange Ratio” means the ratio at which a share of Company Common Stock is exchanged for shares of Purchaser Common Stock at the Transaction Effective Time, as calculated pursuant to Section 2.7. From and after the Transaction Effective Time, (i) all references to the Company (including any references relating to a “Sale Event” involving the Company) in the Company Stock Plan and in each agreement evidencing any outstanding award of Company Options shall be deemed to refer to the Purchaser and (ii) the aggregate number of awards permitted to be issued or granted under the Company Stock Plan shall be adjusted to an amount equal to (A) the aggregate number of shares subject to awards permitted to be issued or granted under the Company Stock Plan immediately prior to the Transaction Effective Time multiplied by (B) the Exchange Ratio. Prior to the Transaction Effective Time, the Company Stock Plan shall be amended, to the extent necessary, to reflect the transactions contemplated by this Section 2.8(d), including the conversion of the Company Options and the substitution of the Purchaser for the Company thereunder to the extent appropriate to effectuate the assumption of such Company Stock Plan by the Purchaser. Promptly after the Closing, the Purchaser shall take all action necessary or appropriate in accordance with applicable securities Laws to have available for issuance under an effective registration statement filed with the SEC a sufficient number of shares of Purchaser Common Stock for delivery upon exercise or vesting of the Adjusted Options. As of the Transaction Effective Time, except as provided in this Section 2.8(d), all rights under any Company Option and any provision of the Company Stock Plan providing for the issuance or grant of any other interest in respect of the capital stock of the Company shall be cancelled. The Company shall ensure that, as of and after the Transaction Effective Time, except as provided in this Section 2.8(d), no Person shall have any rights under the Company Stock Plan.
Merger Shares The Merger Shares have been duly authorized and, when issued in consideration for the conversion of the Company Shares, as a result of the Merger and pursuant to the terms hereof, will be validly issued, fully paid and non-assessable, and not subject to any liens, pledges, charges, encumbrances, restrictions of any kind, preemptive rights or any other rights or interests of third parties or any other encumbrances, except for applicable securities law restrictions on transfer, including those imposed by Regulation D or Section 4(2) of the Securities Act and Rule 144 promulgated under the Securities Act and under applicable “blue sky” state securities laws. Assuming that all of the holders of Company Shares are “accredited investors,” as such term is defined in Regulation D promulgated under the Securities Act, and that all such Persons have complied with all of the terms and conditions of this Agreement, the offer and sale of the Merger Shares under this Agreement will be exempt from the registration requirements of the Securities Act and in compliance with all federal and state securities laws.
Company Warrants Each warrant to purchase shares of Company Common Stock (a “Company Warrant”) granted under a warrant agreement of the Company that is outstanding immediately prior to the Effective Time shall, at the Effective Time, cease to represent a right to purchase shares of Company Common Stock and shall at the election of Parent and at the Effective Time, either represent a right to purchase shares of Parent Common Stock or be converted into a warrant to purchase shares of Parent Common Stock (a “Parent Warrant”), in each case on substantially the same terms and conditions as were applicable under such Company Warrant. Prior to the Effective Time, the Company shall take all action necessary to enable Parent to make either of such elections. All Company Warrants issued to Parent and outstanding immediately prior to the Effective Time shall, at the Effective Time, be cancelled and shall cease to exist. The number of shares of Parent Common Stock subject to each such Company Warrant or Parent Warrant, as the case may be, shall be the number of shares of Company Common Stock subject to each such Company Warrant immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded up, if necessary, to the nearest whole share of Parent Common Stock, and such Company Warrant or Parent Warrant, as the case may be shall have an exercise price per share (rounded to the nearest cent) equal to the per share exercise price specified in such Company Warrant divided by the Exchange Ratio. Parent shall reserve for issuance a number of shares of Parent Common Stock at least equal to the number of shares of Parent Common Stock that will be subject to Parent Warrants as a result of the assumption by Parent of Company Warrants as contemplated by this Section 2.5. Notwithstanding the foregoing, any adjustment to the number of shares receivable upon exercise of a Parent Warrant or a Company Warrant or to the exercise price pursuant to this Section 2.5 shall not be duplicative of any such adjustments that occur pursuant to the terms of the underlying Company Warrant.
Parent Stock As of December 15, 2013, the entire authorized capital stock of the Parent consists of (a) 200,000,000 shares of Parent Common Stock of which 103,963,318 shares of Parent Common Stock are duly and validly issued and outstanding, fully paid and nonassessable as of the Closing Date, and (b) 40,000,000 preferred shares of beneficial interest, $0.01 par value per share, of which, 9,498,888 shares in the aggregate of Series G, Series H and Series I of such preferred shares of beneficial interest are duly and validly issued and outstanding, fully paid and nonassessable as of the Closing Date and such preferred shares of beneficial interest provide no rights to any holder thereof that may cause a violation of Section 6.04(f). The issuance and sale of such Parent Common Stock and such preferred shares of beneficial interest of the Parent either (i) has been registered under applicable federal and state securities laws or (ii) was issued pursuant to an exemption therefrom. The Parent meets the requirements for taxation as a REIT under the Code.
Company RSUs “Company RSUs” shall mean restricted stock units with respect to Shares, other than restricted stock units subject to performance-based vesting.
Company Stock Plans (a) The Company shall take such action as shall be required:
Company Stock The Certificates and stock powers, duly endorsed, transferring the Company Stock to Subsidiary and the officer and director resignations required in Section 4.6;
Reacquired Shares Any shares of Series A Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the Certificate of Incorporation, or in any other Certificate of Designations creating a series of Preferred Stock or any similar stock or as otherwise required by law.
