Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights. (b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan. (c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company. (d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent. (e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company. (f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Acer Inc), Merger Agreement (Gateway Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 of: (i) 800,000,000 shares of Class A Company Common Stock; and (ii) 100,000,000 shares of preferred stock, $0.00001 par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Company Preferred SharesStock”). As of 5:00 p.m. (California time) on October 25, 2021 (the “Company Listing Date”): (i) 50,000 148,929,117 shares of Company Common Stock were issued and outstanding (which are designated as Series A Convertible Preferred Stock, amount includes shares of Company Restricted set forth in Section 2.3(b)(iv)); (ii) 1,000,000 no shares of which are designated as Series B Junior Participating Company Preferred Stock (“Series B Preferred”) were issued and outstanding; and (iii) 50,000 no shares of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares Common Stock were held by the Company as treasury shares. There are no shares of Company Common Stock held by any of the Company’s Subsidiaries. There is no Company Contract relating to the voting or registration of any shares of Company Common Stock. Except pursuant to Company Equity Plans and the agreements evidencing outstanding Company Equity Awards, none of the Acquired Companies is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock or other securities.
(b) As of 5:00 p.m. (California time) on the Company Listing Date: (i) 15,044,092 shares of Company Common Stock were subject to issuance pursuant to Company options granted and outstanding under the Company Equity Plans (“Company Options”); (ii) no Preferred Shares were outstanding5,416,004 shares of Company Common Stock are reserved for future issuance pursuant to the Company’s 2018 Employee Stock Purchase Plan, as amended August 22, 2019 (the “Company ESPP”); (iii) 1,000,000 6,647,631 shares of Series B Preferred Company Common Stock were reserved for future issuance issuable upon exercise settlement or vesting of the outstanding Company Rightsrestricted stock units (“Company RSUs”); (iv) 40,468,000 229,661 shares of restricted Company Shares Common Stock were unvested pursuant to Company restricted awards granted and outstanding under the Company Equity Plans (“Company Restricted Stock”); (v) no shares of Company Common Stock were subject to stock appreciation rights, whether granted under the Company Equity Plans or otherwise; (vi) no Company Equity Awards were outstanding other than those granted under the Company Equity Plans; and (vii) 16,963,795 shares of Company Common Stock were reserved for future issuance pursuant to Company Equity Awards not yet granted under the Company Equity Plans.
(c) Part 2.3(c) of the Company Disclosure Schedule accurately sets forth the following information with respect to each Company Equity Award outstanding as of 5:00 p.m. (California time) on the Company Listing Date: (1) the Company Equity Plan (if any) pursuant to which such Company Equity Award was granted; (2) the name of the holder of such Company Equity Award; (3) the number of shares of Company Common Stock Plans, of which 27,876,699 Company Shares were subject to outstanding such Company Options Equity Award (including, for Company Equity Awards subject to performance-based vesting requirements, if any, both the target and 2,876,177 were Restricted the maximum number of shares of Company SharesCommon Stock); (4) the exercise price (if any) of such Company Equity Award; (5) the date on which such Company Equity Award was granted; (6) the date on which such Company Equity Award expires; (7) if such Company Equity Award is a Company Option, whether it is an “incentive stock option” (as defined in the Code) or a non-qualified stock option; (8) if such Company Equity Award is a Company RSU, the dates on which shares of Company Common Stock are scheduled to be delivered, if different from the applicable vesting schedule; and (v9) approximately 34,762,457 whether the vesting of such Company Shares Equity Award differs materially from the Company’s standard vesting schedule. The exercise price of each Company Option is no less than the fair market value of a share of Company Common Stock as determined on the date of grant of such Company Option. All grants of Company Equity Awards were reserved for future issuance upon conversion of recorded on the Company’s financial statements (including any related notes thereto) contained in the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected SEC Reports in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares areaccordance with GAAP, and all Company Shares which may be issued, upon exercise no such grants involved any “back dating,” “forward dating” or similar practices with respect to the effective date of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rightsgrant (whether intentionally or otherwise).
(bd) The Company has delivered or made available Made Available to Parent accurate and complete copies of: of all equity-based plans or, if not granted under an equity plan, such other Contract, pursuant to which any stock options, stock appreciation rights, restricted stock units, deferred stock units or restricted stock awards (Aincluding all outstanding Company Equity Awards, whether payable in equity, cash or otherwise) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , and (B) the forms of all stock option, stock appreciation right, restricted stock unit, deferred stock unit and restricted stock award agreements with respect to the Company Stock Plans. The Company does not maintain an employee evidencing such stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance sharesrestricted stock units, contingent value rightsdeferred stock units or restricted stock awards (including all outstanding Company Equity Awards, “phantom” stock whether payable in equity, cash or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Companyotherwise).
(de) Section 3.3(dExcept (x) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d2.3(a) and 2.3(b) and (y) for changes since 5:00 p.m. (California time) on the Company Listing Date resulting from the exercise of Company Options or the vesting of Company RSUs or Company Restricted Stock, in each case, outstanding as of the Company Disclosure Schedule Listing Date and in accordance with respect to Restricted Company Sharestheir terms, there are no Company Shares outstanding which are subject to vesting over time or upon as of the satisfaction date of any condition precedent.
(e) There are this Agreement: (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or does not have any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests outstanding; and (ii) other than the Company ESPP, there is no (A) outstanding equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) issued or granted by any of each Subsidiary the Acquired Companies to acquire any shares of the capital stock or other securities of any of the Acquired Companies, (B) outstanding security, instrument or obligation issued, granted or entered into by any of the Acquired Companies that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the Acquired Companies or (C) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which any of the Acquired Companies is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities.
(f) All outstanding shares of Company Common Stock, options, warrants, equity-based compensation awards (whether payable in equity, cash or otherwise) and other securities of the Acquired Companies have been issued and granted in material compliance in all material respects with with: (i) the Securities Act all applicable securities laws and other applicable Legal Requirements Requirements; and (ii) all requirements the terms of Material applicable Contracts.
(g) All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable and free of any preemptive rights. All of the outstanding shares of capital stock of each of the Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, and are owned directly or indirectly by the Company, free and clear of any Encumbrances, except for restrictions on transfer under applicable securities laws and Permitted Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Momentive Global Inc.), Merger Agreement (Momentive Global Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 30,000,000 Company Shares, 1,000,000 Shares and 200,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share preferred stock (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23July 30, 20072008: (i) 373,641,481 16,580,886 Company Shares were issued (and not held by the 16,579,886 Company as treasury shares) and shares were outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred 3,043,646 Company Shares were reserved for future issuance issuable upon exercise of Company Warrants that were issued and outstanding; (iii)(A) 1,613,535 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 2007 Equity Incentive Plan and (B) 600,666 Company RightsShares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 40,468,000 954,545 Company Shares were issuable upon conversion of the Company Debentures. As of July 30, 2008, 1,185,694 Company Shares were reserved for future issuance pursuant to the Company Stock PlansCompany’s 2007 Equity Incentive Plan, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 431,797 Company Shares were reserved for future issuance upon conversion of pursuant to the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company’s Employee Stock Purchase Plan and 0 Company Shares other than were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007amended. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent copies of: of each of (A) the Company Stock Equity Plans, which cover the stock options and restricted stock awards granted by the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , and (B) the forms of all stock option agreements and restricted stock award agreements with respect to the Company Stock Plans. The Company does not maintain an employee evidencing such options and stock purchase planawards.
(cb) Except for options, rights, securities, convertible notes securities and plans referred to in Section 3.3(a), there is no: (i) and in outstanding option or right to acquire from the Company Rights Agreement, there any shares of the capital stock of the Company; or (ii) outstanding security of the Company that is convertible into or exchangeable for any Company Shares.
(c) There are no outstanding (i) securities of any of the Company Company’s Subsidiaries convertible into or exchangeable for shares of capital stock of of, or other equity or voting securities or equity interests in interest in, any Subsidiary of the Company, (ii) options, warrants warrants, rights or other rights commitments or arrangements agreements to acquire from any of the Company’s Subsidiaries, or other obligations or commitments that obligate any of the Company’s Subsidiaries to issue, any capital stock of of, or other equity or voting securities or ownership interests interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) obligations of the Company 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 of, or other equity or voting securities or ownership interests in the Company or interest (iiiincluding any voting debt) restricted sharesin, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) Subsidiary of the Company Disclosure Schedule sets forth (the items in clauses (i) the date each Company Option was granted), (ii) the number of shares of Company Shares subject to each such Company Option, and (iii) ), together with the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) capital stock of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness Subsidiaries of the Company having the right Company, being referred to vote outstanding and collectively as “Subsidiary Securities”) or (iiiv) no outstanding other obligations of by the Company or any of its Subsidiaries to make any payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any of the Company’s Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No outstanding Subsidiary of the Company owns any capital stock of the CompanySecurities.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Simtek Corp), Merger Agreement (Cypress Semiconductor Corp /De/)
Capitalization, Etc. (aA) The authorized capital stock of the Company consists of 1,000,000,000 200,000,000 shares of Company Shares, Common Stock and 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share preferred stock (“Preferred Shares”"PREFERRED SHARES"), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 235:00 p.m. Pacific Time on May 15, 20072008: (i) 373,641,481 19,031,276 shares of Company Shares Common Stock were issued and outstanding (and not held by including shares of Company Common Stock included in the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares Units), of which no shares were held by unvested or were subject to any repurchase rights, risk of forfeiture or other similar condition in favor of the Company as treasury sharesCompany; (ii) no Preferred Shares were issued or outstanding; (iii) 1,000,000 33,033,013 shares of Series B Preferred Company Common Stock were reserved for future issuance issuable upon exercise of Company Warrants that were issued and outstanding (including shares of Company Common Stock issuable upon exercise of Company Warrants included in the Company RightsUnits); (iii) 3,108,618 shares of Company Common Stock were issuable upon exercise of options issued pursuant to the Company Equity Plan; and (iv) 40,468,000 17,489,813 shares of Company Shares Common Stock were issuable upon conversion of $128,200,000 aggregate principal amount of Convertible Notes. As of 5:00 p.m. Pacific Time on May 15, 2008, 2,064,090 Company Units were outstanding (which Company Units are included in the totals above). Between 5:00 p.m. Pacific Time on May 15, 2008 and the date of this Agreement, the Company has not issued any shares of Company Common Stock except upon exercise of outstanding Company Options or Company Warrants or conversion of outstanding Convertible Notes in accordance with their terms. As of the date of this Agreement, 4,366,544 shares of Company Common Stock were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible NotesEquity Plan. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent or Parent's legal advisor copies of: of (A) the Company Stock PlansEquity Plan, which cover covers the stock options and restricted stock awards granted by the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , and (B) the forms of all stock option agreements and restricted stock award agreements evidencing such options and stock awards.
(B) All the outstanding shares of capital stock of the Company and each Designated Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable.
(C) Except as set forth in Part 2.3(c) of the Company Disclosure Schedule: (i) none of the outstanding shares of capital stock of the Company and the Designated Subsidiaries is entitled or subject to any preemptive right or right of participation; (ii) none of the outstanding shares of the capital stock of the Company and the Designated Subsidiaries is subject to any right of first refusal or similar right in favor of the Company; and (iii) there is no agreement in place relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of the capital stock of the Company or the Designated Subsidiaries.
(D) Part 2.3(d) of the Company Disclosure Schedule accurately sets forth with respect to each outstanding Company Option under the Company Stock PlansEquity Plan as of 5:00 p.m. Pacific Time on May 5, 2008: (i) the name of the holder; (ii) the exercise price per share; (iii) the total number of shares subject to such Company Option; (iv) the date on which such Company Option was granted; (v) the applicable vesting schedule; and (vi) whether such Company Option is intended to qualify as an "incentive stock option" within the meaning of Section 422 of the Code. The Between 5:00 p.m. Pacific Time on May 5, 2008 and the date of this Agreement: (i) the Company does has not maintain granted any Company Options; (ii) no outstanding Company Option has been amended, modified or changed; and (iii) Part 2.3(d) of the Company Disclosure Schedule shall have only changed to the extent that outstanding Company Options have been exercised in accordance with their terms. All Company Options (including those that have been exercised, terminated, expired, forfeited or otherwise cancelled) were issued at a strike price at least equal to fair market value such that the fair market value on the grant date equaled or exceeded the fair market value on the financial measurement date for each such Company Option or, with respect to Company Options that were not issued in such a manner, the Company recorded an employee stock purchase planappropriate compensation charge in its financial statements relating to such grants in the appropriate period and reported such in its financial statements and Company Returns during the required period.
(cE) Except for options, rights, securities, convertible notes securities and plans referred to in Section 3.3(a2.3(a) and except as set forth in Part 2.3(d) of the Company Rights Disclosure Schedule, as of the date of this Agreement, there are no outstanding is no: (i) outstanding subscription, option, call, warrant or stock appreciation right or other right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company convertible into or exchangeable for shares any Subsidiary of capital stock of or other voting securities or equity interests in the Company, ; (ii) optionsoutstanding restricted stock award, warrants restricted stock unit award, performance stock award or other rights performance cash award; (iii) outstanding security, instrument or arrangements obligation that is or would reasonably be expected to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities become convertible into or exchangeable for any capital stock shares of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem the Company; (iv) contract under which the Company or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (v) to the Knowledge of the Company, condition or circumstance that would reasonably be expected to provide a basis for the assertion of a valid claim by any Person to the effect that such Person is entitled to acquire or receive any capital stock of the Company or other securities of the Company.
(fF) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock, options, warrants, stock appreciation rights and other securities or other equity interests of each Subsidiary the Company and the Designated Subsidiaries have been issued and granted in compliance in all material respects with all applicable securities laws and other applicable Legal Requirements.
(G) All of the outstanding membership interests or other equity interests of each of the Company's Subsidiaries: (i) the Securities Act have been duly authorized and other Legal Requirements and validly issued; (ii) all requirements are nonassessable and free of Material Contractspreemptive rights, with no obligation to contribute additional capital; and (iii) except as set forth in Part 2.3(g) of the Company Disclosure Schedule, are owned beneficially and of record by the Company, free and clear of any Encumbrances (other than Permitted Encumbrances).
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007of: (i) 373,641,481 6,000,000,000 shares of Company Shares were Common Stock, of which 3,004,205,406 shares have been issued (and not held by the Company are outstanding as treasury shares) and outstandingof October 11, 2012; (ii) 5,347,296 500,000,000 shares of Company Shares were held by the Company as treasury shares; (ii) Series 2 Common Stock, of which no Preferred Shares were shares are issued or are outstanding; (iii) 1,000,000 100,000,000 shares of Series B Preferred were reserved for future issuance upon exercise Company Non-Voting Common Stock, of the Company Rightswhich no shares are issued or are outstanding; and (iv) 40,468,000 20,000,000 shares of Company Shares were Preferred Stock, of which (A) 3,000,000 shares have been designated as Preferred Stock-Sixth Series, Junior Participating, of which no shares have been issued or are outstanding, (B) 300,000 shares have been designated as Preferred Stock-Seventh Series, Convertible, of which no shares have been issued or are outstanding, (C) 232,745 shares have been designated as Ninth Series Zero Coupon Convertible Preferred Stock Due 2013, of which no shares have been issued or are outstanding, and (D) 16,467,255 shares have not been designated, have not been issued and are not outstanding. As of October 11, 2012, the Company held no shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable and free of preemptive rights, purchase option, call, right of first refusal or any similar right. The Company is not under (and will not as a result of the Merger or any of the other Contemplated Transactions become under) any contractual obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock or other voting securities, except for obligations under Company Plans.
(b) As of October 11, 2012: (i) 66,866,935 shares of Company Common Stock are subject to issuance pursuant to Company Options; (ii) 73,813,916 shares of Company Common Stock are reserved for future issuance pursuant to the Company ESPP; (iii) 22,227,728 shares of Company Common Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were are reserved for future issuance upon conversion pursuant to Company Equity Awards; and (iv) 135,195,891 shares of Company Common Stock are reserved for future issuance pursuant to equity awards not yet granted under the Company Convertible NotesEquity Plans. Since August 23, 2007, the The Company has not issued any Made Available to Parent a complete and accurate list that sets forth with respect to each Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as Equity Award outstanding as of August 23October 11, 2007. All of 2012 the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent copies offollowing information: (A) the particular plan (if any) pursuant to which such Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this AgreementEquity Award was granted; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares Common Stock subject to each such Company Equity Award; (C) the per share exercise price (if any) of such Company Equity Award; (D) the date on which such Company Equity Award was granted; (E) the date on which such Company Equity Award expires; (F) if such Company Equity Award is a Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each whether such Company Option may is an “incentive stock option” (as defined in the Code) or a non-qualified stock option; (G) whether such Company Equity Award is a restricted stock unit or a restricted stock award; and (H) if such Company Equity Award is a Company RSU, the dates on which shares of Company Common Stock are scheduled to be exerciseddelivered, if different from the applicable vesting schedule. The Company has Made Available to Parent accurate and complete copies of all Company Equity Plans pursuant to which any outstanding Company Equity Awards were granted by the Company. No vesting schedule or provision, whether time-based or performance-based, of any Company Equity Award, will accelerate solely as a consequence of the Merger or any of the other Contemplated Transactions. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights or equity based awards with respect to any of the Acquired Corporations other than as set forth in Part 3.5(b) of the Company Disclosure Schedule.
(c) Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares3.5(b), there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are is no: (i) no bondsoutstanding subscription, debenturesoption, notes call, warrant or other indebtedness right (whether or not currently exercisable) to acquire any shares of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary voting securities of any of the Company owns Acquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any capital stock shares of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests voting securities of each Subsidiary any of the Acquired Corporations; or (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or, other than any Company Plan, Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other voting securities.
(d) All outstanding shares of Company Common Stock, Company Equity Awards and other securities of any of the Acquired Corporations have been issued and granted in compliance in all material respects with (i) the Securities Act all applicable securities laws and other applicable Legal Requirements Requirements.
(e) All of the outstanding shares of capital stock of each of the material Acquired Corporations have been duly authorized and (ii) all requirements validly issued, are fully paid and nonassessable and free of Material Contractspreemptive rights and are owned beneficially and of record by the Company or a Subsidiary of the Company, free and clear of any material Liens.
Appears in 1 contract
Capitalization, Etc. (aA) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 33,000,000 shares of Class A Common Stock, Stock (no par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”share), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options 12,861,496 shares have been issued and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , 1,142,295 shares of Series A Preferred Stock (no par value per share), of which 767,295 shares have been issued and are outstanding as of the date of this Agreement, 912,500 shares of Series B Preferred Stock (B) no par value per share), of which 855,000 shares have been issued and are outstanding as of the forms date of all award agreements this Agreement and 10,025,000 shares of Series C Preferred Stock (no par value per share), of which 1,373,750 shares have been issued and are outstanding as of the date of this Agreement (the Company's Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock shall be collectively referred to herein as the "COMPANY PREFERRED STOCK" and, together with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for optionsCommon Stock, rights, securities, convertible notes and plans shall be referred to in Section 3.3(a) as the "COMPANY STOCK"). Each outstanding share of Company Preferred Stock is convertible into one share of Company Common Stock. All of the outstanding shares of Company Stock have been duly authorized and validly issued, and are fully paid and non-assessable. As of the date of this Agreement, the outstanding shares of Company Stock are held by the Persons, with the addresses of record and in the Company Rights Agreement, there are no outstanding (iamounts set forth in Part 2.3(a) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(dDisclosure Schedule. Part 2.3(a) of the Company Disclosure Schedule also provides an accurate and complete description of the terms of each repurchase option which is held by the Company and to which any of such shares is subject.
(B) The Company has reserved 6,137,499 shares of Company Common Stock for issuance under its 1998 Stock Option Plan, of which options to purchase 3,239,894 shares are outstanding as of the date of this Agreement. Part 2.3(b) of the Company Disclosure Schedule accurately sets forth forth, with respect to each Company Option that is outstanding as of the date of this Agreement: (i) the name of the holder of such Company Option; (ii) the total number of shares of Company Common Stock that are subject to such Company Option and the number of shares of Company Common Stock with respect to which such Company Option is immediately exercisable; (iii) the date each on which such Company Option was grantedgranted and the term of such Company Option; (iv) the vesting schedule for such Company Option; (v) the exercise price per share of Company Common Stock purchasable under such Company Option; and (vi) whether such Company Option has been designated an ISO.
(C) Part 2.3(c)(i) of the Company Disclosure Schedule accurately sets forth, with respect to each convertible debenture issued to any Person: (iiA) the name of the holder of such convertible debenture; (B) the total number of shares of Company Stock that are subject to such convertible debenture; (C) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule Stock with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding such convertible debenture is immediately exercisable and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (iD) the Securities Act and other Legal Requirements and (ii) all requirements term of Material Contractssuch convertible debenture.
Appears in 1 contract
Sources: Merger Agreement (Home Director Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007of: (i) 373,641,481 141,000,000 shares of Company Shares were Common Stock (with $0.001 par value), of which 30,781,034 shares have been issued (and not held by are outstanding as of the Company as treasury shares) Signing Date; and outstanding; (ii) 5,347,296 73,542,017 shares of Company Shares were held by Preferred Stock (with $0.001 par value) of which (1) 4,590,000 have been designated “Series A Preferred Stock,” all of which have been issued and are outstanding as of the Company as treasury sharesSigning Date; (ii2) no Preferred Shares were outstanding; (iii) 1,000,000 shares of 8,399,819 have been designated “Series B Preferred were reserved for future issuance upon exercise Stock,” 8,014,573 shares of which have been issued and are outstanding as of the Company RightsSigning Date; (iv3) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, 3,846,371 have been designated “Series C Preferred Stock,” 3,735,857 shares of which 27,876,699 Company Shares were subject to have been issued and are outstanding Company Options as of the Signing Date; (4) 16,060,562 have been designated “Series D Preferred Stock,” 16,031,233 shares of which have been issued and 2,876,177 were Restricted Company Sharesare outstanding as of the Signing Date; (5) 5,027,622 have been designated “Series E Preferred Stock,” all of which have been issued and are outstanding as of the Signing Date; (6) 27,697,643 have been designated “Series G Preferred Stock,” 26,054,002 shares of which have been issued and are outstanding as of the Signing Date; and (v7) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion 7,920,000 have been designated “Series G-1 Preferred Stock,” 4,969,219 shares of the Company Convertible Notes. Since August 23, 2007, the Company has not which have been issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as and are outstanding as of August 23, 2007the Signing Date. Each outstanding share of Company Preferred Stock is convertible into one share of Company Common Stock. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise shares of Company Options Common Stock and upon conversion of Company Convertible Notes, will be, when issued, Preferred Stock have been duly authorized, authorized and validly issued, and are fully paid and nonassessable non-assessable. Part 2.3(a) of the Disclosure Schedule provides an accurate and not subject complete description of the terms of each repurchase option which is held by the Company and to which any preemptive rightsof such shares is subject.
(b) The Company has delivered or made available reserved 5,268,032 shares of Company Common Stock for issuance under the 2009 Equity Plan, of which options to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that purchase 25,000 shares are outstanding as of the date Signing Date. Options to purchase 18,734,454 shares of this Agreement; Company Common Stock are outstanding as of the Signing Date under the 1999 Stock Plan and (Bno shares remain available for issuance thereunder. Part 2.3(b) of the forms of all award agreements Disclosure Schedule accurately sets forth, with respect to the each Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no Option that is outstanding (i) securities as of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth Signing Date: (i) the date each name of the holder of such Company Option was granted, Option; (ii) the total number of shares of Company Shares Common Stock that are subject to each such Company Option, ; (iii) the number date on which such Company Option was granted and the term of vested Company Shares subject to each such Company Option, ; (iv) the vesting commencement date and schedule for such Company Option and the extent to which the vesting schedule will be accelerated as a result of the Merger (whether alone or in connection with subsequent or additional events); (v) the exercise price (or purchase price) per share of Company Common Stock purchasable under such Company Option; (vi) the expiration date of each such Company Option, and (vi) the price at which each whether such Company Option may be exercised. Except has been designated (or represents shares purchased under) an “incentive stock option” as set forth defined in Section 3.3(d) 422 of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding Code; and (iivii) no outstanding obligations of the Company residence or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests domicile of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.person holding an Company
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 35,000,000 Company Shares, 1,000,000 Shares and 2,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share preferred stock (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23July 19, 20072005: (i) 373,641,481 14,978,324 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 , including 565,466 unvested restricted Company Shares were held by the Company as treasury sharesShares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B 200,000 Preferred Shares were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 options to purchase 344,058 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Sharesoutstanding; and (v) approximately 34,762,457 564,670 Company Shares were reserved remained available for future issuance upon conversion of or grant pursuant to the Company Convertible NotesOption Plan. Since August 23Between July 19, 20072005 and the date of this Agreement, (A) the Company has not issued any Company Shares other than as a result of in connection with the exercise of stock options outstanding on July 19, 2005, and (B) the Company Options reflected has not granted any stock options. Except as set forth in this Section 3.3(a), at the immediately preceding sentence as outstanding as close of August 23business on July 19, 20072005 no shares of capital stock of the Company were issued, reserved for issuance or outstanding. All of the issued and outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, are duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) nonassessable. The Company has delivered or made available to Parent copies of: of (A1) the Company Stock PlansOption Plan, which cover covers all of the stock options and unvested restricted stock awards granted by the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , and (B2) the forms of all stock option agreements and restricted stock award agreements with respect to the Company Stock Plans. The Company does not maintain an employee evidencing such options and stock purchase planawards.
(cb) Except for options, rights, securities, convertible notes securities and plans referred to in Section 3.3(aPart 3.3(c) or Part 3.3(d) of the Company Disclosure Schedule and in the Company Rights Agreement, as of the date of this Agreement, there are is no outstanding (i) securities of the Company option, warrant, call, right, convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rightssecurity, “phantom” stock right, stock appreciation right, stock-based performance unit, commitment, contract, arrangement or similar securities undertaking of any kind to which the Company or rights any of its Subsidiaries is a party or by which any of them is bound (i) obligating the Company or any of its Subsidiaries to acquire issue, deliver, sell or transfer or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other voting securities equity interest in, the Company or ownership any of its Subsidiaries, (ii) obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking or (iii) that gives any Person the right to receive from the Company or any of its Subsidiaries any economic benefit or right determined by reference to the economic benefits and rights accruing to holders of capital stock of, or other equity interests in in, the CompanyCompany or any of its Subsidiaries.
(dc) Section 3.3(dPart 3.3(c) of the Company Disclosure Schedule sets forth (i) contains a schedule as of the date each Company Option was granted, (ii) of this Agreement setting forth the number of shares of underlying each outstanding stock option granted by the Company Shares subject to each such Company Optionand the exercise price, vesting date (iiior dates) the number of vested Company Shares subject to each such Company Option, (vi) the and expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercisedstock option. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there There are no Company Shares outstanding which are subject to vesting over time preemptive or upon the satisfaction similar rights held by any holder of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness class of the Company having the right to vote outstanding and (ii) no outstanding obligations securities of the Company or any of its Subsidiaries with respect to repurchasesuch securities. All outstanding unvested stock options granted by the Company will accelerate at or prior to the Effective Time, redeem and all outstanding stock options granted by the Company will terminate at or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary prior to the Effective Time.
(d) Part 3.3(d) of the Company owns Disclosure Schedule contains a schedule as of the date of this Agreement setting forth the holders of restricted Company Shares granted pursuant to the Company Option Plan and the vesting date (or dates) of such restricted Company Shares. Other than repurchase rights in connection with the restricted Company Shares listed in Part 3.3(d) of the Company Disclosure Schedule, as of the date of this Agreement, the Company does not have repurchase rights with respect to any other securities of the Company.
(e) Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations providing the holders of which the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company or any of its Subsidiaries on any matter submitted to such stockholders or to a separate class of holders of capital stock of the Company or any of its Subsidiaries.
(f) Except for this Agreement, the Transaction Support Agreements and any other agreements or arrangements contemplated by this Agreement, there are no voting trusts, voting agreements or similar agreements or other arrangements to which the Company is a party or by which the Company is bound with respect to the voting of capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), of: (i) 50,000 65,000,000 Shares, of which are designated 33,319,757 Shares were issued and outstanding (inclusive of 182,199 Company Restricted Shares) and 1,888,205 Shares were held in the treasury of the Company, in each case, as Series A Convertible Preferred Stockof the close of business on October 29, 2018 and (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Company Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares no shares were subject to issued and outstanding Company Options and 2,876,177 were Restricted Company Shares; and (vor held in treasury) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion as of the Company Convertible Notesclose of business on October 29, 2018. Since August 23Between the close of business on October 29, 20072018 and the date of this Agreement, the Company has not issued any Company Shares shares of capital stock or other securities of the Company, other than as a result of upon the exercise exercise, vesting or settlement of Company Options reflected Equity Awards, in the immediately preceding sentence as each case, outstanding as of August 23the close of business on October 29, 20072018, pursuant to the terms of such Company Equity Awards. All of the outstanding Company Shares are, have been duly authorized and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, and are fully paid and nonassessable and not subject to any preemptive rightsnonassessable.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there There are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any capital stock or securities of their respective the Company or any of its Subsidiaries and (ii) there are no outstanding bonds, debentures, notes or other indebtedness of the Company having a right to vote (or convertible into or exercisable for such securities having the right to vote) with the stockholders of the Company on any matter.
(c) As of the date of this Agreement, the Company has no shares of capital stock reserved for issuance, except that, as of October 29, 2018, there were (a) 1,034,321 remaining Shares reserved for issuance under the Company Equity Plans, (b) 277,993 Shares reserved for issuance pursuant to the exercise and settlement of Company Options, (c) 1,043,361 Shares reserved for issuance upon the settlement or vesting of Company RSUs and (d) 267,155 Shares reserved for issuance upon the settlement or vesting of Company PSUs (assuming achievement of applicable performance goals at target value). As of October 29, 2018, there were 7,113.7645 Company Phantom Shares outstanding, with respect to which no Shares were reserved for issuance upon the settlement thereof. Part 3.3(c) of the Company Disclosure Schedule contains a correct and complete list of each outstanding Company Equity Award as of the date of this Agreement, including the holder’s name, date of grant, exercise or purchase price (if applicable), number of Shares subject thereto, vesting schedule, and the Company Equity Plan or Company Directors’ Plan under which such Company Equity Award was granted.
(d) All of the outstanding capital stock, ownership interests in and other securities of each Subsidiary of the Company are duly authorized, validly issued, fully paid and nonassessable and are owned, directly or indirectly, by the Company, free and clear of any Encumbrance.
(e) There are no: (i) preemptive rights or outstanding subscriptions, options, call, conversion rights, redemption rights, repurchase rights, warrants, agreements, arrangements, commitments or other rights (whether or not currently exercisable) that (A) give any Person the right to acquire any shares of the capital stock or any other securities of the Company or any of its Subsidiaries or (B) obligate the Company or any of its Subsidiaries to issue or sell any capital stock or other equity interests. No Subsidiary securities of the Company owns or any capital stock of its Subsidiaries; (ii) outstanding securities or obligations that are or may become convertible into or exchangeable for any shares of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests securities of each Subsidiary have been issued and granted in compliance in all material respects with the Company or any of its Subsidiaries or (iiii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which the Securities Act and Company or any of its Subsidiaries is or may become obligated to sell or otherwise issue or register, any shares of its capital stock or any other Legal Requirements and securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party relating to the voting or disposition of any shares of the capital stock or other securities of the Company or any of its Subsidiaries or granting to any Person or group of Persons the right to elect, or to designate or nominate for election, a director to the board of directors (iior similar governing body) all requirements of Material Contractsthe Company or any of its Subsidiaries.
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Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007of: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 150,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock PlansCommon Stock, of which 27,876,699 Company Shares were subject to outstanding Company Options 19,923,992 shares have been issued and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (ii) 96,100,000 shares of Company Preferred Stock, (A) 11,000,000 of which have been designated “Series A-1 Preferred Stock,” of which 10,723,075 shares have been issued and are outstanding as of the date of this Agreement, (B) 15,000,000 of which have been designated “Series B-1 Preferred Stock,” of which 14,712,512 have been issued and are outstanding as of the forms date of this Agreement, (C) 5,000,000 of which have been designated “Series B-2 Preferred Stock,” of which 4,972,385 have been issued and are outstanding as of the date of this Agreement, (D) 25,000,000 of which have been designated “Series C-1 Preferred Stock,” of which 24,744,115 have been issued and are outstanding as of the date of this Agreement, (E) 2,100,000 of which have been designated “Series C-2 Preferred Stock,” of which 2,088,994 have been issued and are outstanding as of the date of this Agreement, and (F) 38,000,000 of which have been designated “Series D Preferred Stock,” of which 13,697,981 have been issued and are outstanding as of the date of this Agreement. Each outstanding share of Company Preferred Stock is convertible into one share of Company Common Stock. All of the outstanding shares of Company Capital Stock have been duly authorized and validly issued, and are fully paid and non-assessable. Part 2.3(a) of the Disclosure Schedule provides an accurate and complete list of the name of and last address known by the Company for each Stockholder, the number and class of Company Capital Stock owned by such Stockholder as of the date of this Agreement, the date such Company Capital Stock was purchased, the price paid per share, the form of consideration used (if not cash). The Company has delivered to Parent accurate and complete copies of, and Part 2.3(a) of the Disclosure Schedule lists, all award agreements Contracts pursuant to which the Company has a right to repurchase any shares of Company Capital Stock.
(b) Immediately prior to the Effective Time, Company Options to purchase an aggregate of 10,548,144 shares of Company Common Stock were outstanding and Company Warrants to purchase an aggregate of 62,000 shares of Company Common Stock were outstanding. The Company Options under the Company’s 1999 Stock Option/Stock Issuance Plan shall, in connection with the Merger, be treated in the manner set forth in Section 1.6. Each of the Company Warrants for Company Common Stock shall terminate upon the consummation of the Merger. As of the date of this Agreement, Company Warrants to purchase an aggregate of 1,727,685 shares of Series D Preferred Stock were outstanding, with an aggregate exercise price of $466,474.95. Part 2.3(b) of the Disclosure Schedule accurately sets forth, with respect to each Company Warrant that is outstanding as of the date of this Agreement: (1) the name of the holder of such Company Warrant; (2) the total number of shares of Series D Preferred Stock Plansthat are subject to such Company Warrant; (3) the exercise price per share of Series D Preferred Stock purchasable under such Company Warrant; and (4) the expiration date of such Company Warrant. The Company does not maintain an employee stock purchase plan.
(c) has delivered to Parent accurate and complete copies of each Company Warrant. Except for options, rights, securities, convertible notes and plans referred to as set forth in this Section 3.3(a2.3(b) and in Part 2.3(b) of the Company Rights AgreementDisclosure Schedule, there are no is no: (w) outstanding subscription, option, call, warrant or right (iwhether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company convertible into Company; (x) outstanding security, instrument or exchangeable for shares of capital stock of obligation that is or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities may become convertible into or exchangeable for any capital stock shares of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities of the Company; (y) Contract under which the Company is or ownership interests in may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (z) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(dc) Section 3.3(d) All of the outstanding shares of Company Capital Stock have been duly authorized and validly issued and are fully paid and nonassessable, have been issued in compliance with all applicable federal, state and foreign securities laws and other Legal Requirements and were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities of the Company. All outstanding Company Options, Company Warrants and other securities of the Company Disclosure Schedule sets forth were duly authorized, have been granted or issued (ias applicable) the date each Company Option was grantedin compliance with all federal, (ii) the number state and foreign securities laws and other Legal Requirements and were not issued in violation of shares of Company Shares or subject to each such Company Option, (iii) any preemptive rights or other rights to subscribe for or purchase securities of the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercisedCompany. Except as set forth in Section 3.3(don Part 2.3(c) of the Company Disclosure Schedule with respect to Restricted Company SharesSchedule, there are no Company Shares outstanding which are subject preemptive rights applicable to vesting over time or upon the satisfaction any shares of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company.
(fd) All outstanding The Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding has never declared or paid a dividend or redeemed, repurchased or otherwise reacquired any shares of capital stock Company Capital Stock or other security other than repurchases at cost from former employees in accordance with the terms of such employees’ purchase agreements.
(e) Except as set forth in Section 1.6 or Part 2.3(e) of the Disclosure Schedule, no stock plan, stock purchase agreement, stock option agreement, employment agreement or other Contract between the Company and any holder of any equity interests securities or rights to purchase equity securities provides for acceleration or other changes in the vesting provisions, the Company’s repurchase rights or other terms of each Subsidiary have been issued and granted in compliance in all material respects with such Contract as the result of (i) the Securities Act and other Legal Requirements and termination of employment (whether actual or constructive); (ii) all requirements any Acquisition Transaction; or (iii) the occurrence of Material Contractsany other event or combination of events.
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Capitalization, Etc. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007of: (i) 373,641,481 29,250,000 shares of Company Shares were Common Stock, of which 8,659,000 shares are issued (and not held by the Company as treasury shares) and outstanding; and (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 13,375,000 shares of Company Series B A Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock PlansStock, 12,238,394 of which 27,876,699 Company Shares were subject to outstanding Company Options are issued and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007outstanding. All of the issued and outstanding Company Shares are, and all Company Shares which may be issued, upon exercise shares of Company Options Common Stock and upon conversion of Company Convertible Notes, will be, when issued, Series A Preferred Stock have been duly authorized, authorized and validly issued, and are fully paid and nonassessable and not subject to any preemptive rightsnon-assessable.
(b) The As of the date of this Agreement, the Company has delivered or made available to Parent copies ofreserved: (Aa) 6,151,964 shares of Company Common Stock for issuance under the Company Equity Plan, of which (i) 509,000 shares of Company Common Stock Planshave been issued pursuant to restricted stock purchase agreements and/or the exercise of outstanding options, which cover (ii) options to purchase 4,408,185 shares have been granted and are currently outstanding, and (iii) 1,234,779 shares remain available for future issuances of restricted stock agreements or grants of options to directors, officers, employees and consultants of the Company Options (collectively, the “Company Options”), and Restricted (b) 2,998,095 shares of Series A Preferred Stock issuable upon exercise of outstanding warrants (collectively, the “Company Shares Warrants”).
(c) Part 2.3(c) of the Company Disclosure Schedule accurately sets forth, with respect to each Company Option and Company Note that are is outstanding as of the date of this Agreement: (i) the name of the holder of such Company Option or Company Note and (ii) the total number of shares of Company Common Stock or Company Series A Preferred Stock that are subject to such Company Option or Company Note and, if a Company Option, the number of shares of Company Common Stock with respect to which such Company Option is currently exercisable. Except as set forth above in Section 2.3(b), or in Part 2.3(c) of the Company Disclosure Schedule, there is no: (A) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for optionsoutstanding security, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into instrument or exchangeable for shares of capital stock of obligation that is or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities may become convertible into or exchangeable for any capital stock shares of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in of the Company.
; (dC) Section 3.3(d) of Contract under which the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of is or may become obligated to sell or otherwise issue any shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or any other equity interests. No Subsidiary of the Company owns any capital stock of securities; or (D) to the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.’s
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Capitalization, Etc. (a) The authorized capital stock Company Capital Stock as of the Company date of this Agreement consists of 1,000,000,000 Company Shares, 1,000,000 (i) 11,500,000 shares of Class A Company Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 0.00001 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plansshare, of which 27,876,699 Company Shares were subject to outstanding Company Options 4,279,705 shares are issued and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , (ii) 4,350,000 shares of preferred stock, par value $0.00001 per share, of which (A) 371,396 shares have been designated as “Series A Preferred Stock” and of which 371,396 shares are issued and outstanding as of the date of this Agreement (the “Series A Preferred Stock”), (B) 1,071,240 shares have been designated as “Series B Preferred Stock” and of which 1,071,237 shares are issued and outstanding as of the forms date of all award agreements this Agreement (the “Series B Preferred Stock”), (C) 1,345,700 shares have been designated as “Series C Preferred Stock” and of which 1,345,700 shares are issued and outstanding as of the date of this Agreement (the “Series C Preferred Stock)” and (D) 1,135,650 shares have been designated as “Series D Preferred Stock” and of which no shares are issued and outstanding as of the date of this Agreement (the “Series D Preferred Stock,” and, collectively with respect to the Series A Preferred Stock, the Series B Preferred Stock, and the Series C Preferred Stock, the “Company Stock PlansPreferred Stock”). The Company does not maintain an employee hold any shares of its capital stock purchase planin its treasury. Except as contemplated herein, there is no Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock or Company Preferred Stock. An aggregate of 2,788,333 shares of Company Common Stock are issuable upon conversion of the Company Preferred Stock.
(b) All of the outstanding shares of Company Common Stock and Company Preferred Stock have been duly authorized and validly issued, and are fully paid and nonassessable and are free of any Encumbrances, other than those imposed by relevant securities laws. None of the outstanding shares of Company Common Stock or Company Preferred Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right.
(c) Except for optionsthe Company’s 2016 Equity Incentive Plan, rightsas amended (the “Company Plan”), securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights does not have any stock option plan or any other plan, program, agreement or arrangement providing for any equity-based compensation for any Person. As of the date of this Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for has reserved 3,217,700 shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable Company Common Stock for any capital stock of or other voting securities or ownership interests in issuance under the Company or (iii) restricted sharesPlan, restricted share unitsof which 65,000 shares have been issued and are currently outstanding, stock appreciation rights2,270,079 shares have been reserved for issuance upon exercise of Company Options granted under the Company Plan, performance shares, contingent value rights, “phantom” stock or similar securities or rights and 882,621 shares of Company Common Stock remain available for future issuance pursuant to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Company Plan. Section 3.3(d2.6(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of the date of this Agreement: (i) the date each Company Option was granted, name of the optionee; (ii) the number of shares of Company Shares Common Stock subject to each such Company Option, Option at the time of grant; (iii) the number of vested shares of Company Shares Common Stock subject to each such Company Option as of the date of this Agreement; (iv) the exercise price of such Company Option, ; (v) the date on which such Company Option was granted; (vi) the expiration applicable vesting schedule, including the number of vested and unvested shares as of the date of each such Company Option, and this Agreement; (vivii) the price at date on which each such Company Option may be exercisedexpires; and (viii) whether such Company Option is an “incentive stock option” (as defined in the Code) or a non-qualified stock option. The Company has made available to Caladrius an accurate and complete copy of the Company Plan and forms of all stock option agreements approved for use thereunder. No vesting of Company Options will accelerate in connection with the closing of the Contemplated Transactions.
(d) Except as for the outstanding Company Options set forth in on Section 3.3(d2.6(c) of the Company Disclosure Schedule with respect to Restricted and except as set forth on Section 2.6(d) of the Company SharesDisclosure Schedule, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are is no: (i) no bondsoutstanding subscription, debenturesoption, notes call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations securities of the Company or any of its Subsidiaries to repurchaseSubsidiaries; (ii) outstanding security, redeem instrument or otherwise acquire obligation that is or may become convertible into or exchangeable for any shares of their respective the capital stock or other equity interests. No Subsidiary securities of the Company owns or any of its Subsidiaries; (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which the Company or any of its Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that is reasonably likely to give rise to or provide a basis for the assertion of a claim by any Person to the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding effect that such Person is entitled to acquire or receive any shares of capital stock or other equity interests securities of each Subsidiary the Company or any of its Subsidiaries. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to the Company or any of its Subsidiaries.
(e) All outstanding shares of Company Common Stock, Company Preferred Stock, Company Options and other securities of the Company have been issued and granted in material compliance in all material respects with (i) the Securities Act all applicable securities laws and other Legal Requirements applicable Law, and (ii) all requirements of Material set forth in applicable Contracts.
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Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 200,000,000 shares of Company Shares, Common Stock and 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share preferred stock (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 235:00 p.m. Pacific Time on May 15, 20072008: (i) 373,641,481 19,031,276 shares of Company Shares Common Stock were issued and outstanding (and not held by including shares of Company Common Stock included in the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares Units), of which no shares were held by unvested or were subject to any repurchase rights, risk of forfeiture or other similar condition in favor of the Company as treasury sharesCompany; (ii) no Preferred Shares were issued or outstanding; (iii) 1,000,000 33,033,013 shares of Series B Preferred Company Common Stock were reserved for future issuance issuable upon exercise of Company Warrants that were issued and outstanding (including shares of Company Common Stock issuable upon exercise of Company Warrants included in the Company RightsUnits); (iii) 3,108,618 shares of Company Common Stock were issuable upon exercise of options issued pursuant to the Company Equity Plan; and (iv) 40,468,000 17,489,813 shares of Company Shares Common Stock were issuable upon conversion of $128,200,000 aggregate principal amount of Convertible Notes. As of 5:00 p.m. Pacific Time on May 15, 2008, 2,064,090 Company Units were outstanding (which Company Units are included in the totals above). Between 5:00 p.m. Pacific Time on May 15, 2008 and the date of this Agreement, the Company has not issued any shares of Company Common Stock except upon exercise of outstanding Company Options or Company Warrants or conversion of outstanding Convertible Notes in accordance with their terms. As of the date of this Agreement, 4,366,544 shares of Company Common Stock were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible NotesEquity Plan. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent or Parent’s legal advisor copies of: of (A) the Company Stock PlansEquity Plan, which cover covers the stock options and restricted stock awards granted by the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , and (B) the forms of all stock option agreements and restricted stock award agreements with respect to evidencing such options and stock awards.
(b) All the outstanding shares of capital stock of the Company Stock Plans. The Company does not maintain an employee stock purchase planand each Designated Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable.
(c) Except as set forth in Part 2.3(c) of the Company Disclosure Schedule: (i) none of the outstanding shares of capital stock of the Company and the Designated Subsidiaries is entitled or subject to any preemptive right or right of participation; (ii) none of the outstanding shares of the capital stock of the Company and the Designated Subsidiaries is subject to any right of first refusal or similar right in favor of the Company; and (iii) there is no agreement in place relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of the capital stock of the Company or the Designated Subsidiaries.
(d) Part 2.3(d) of the Company Disclosure Schedule accurately sets forth with respect to each outstanding Company Option under the Company Equity Plan as of 5:00 p.m. Pacific Time on May 5, 2008: (i) the name of the holder; (ii) the exercise price per share; (iii) the total number of shares subject to such Company Option; (iv) the date on which such Company Option was granted; (v) the applicable vesting schedule; and (vi) whether such Company Option is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code. Between 5:00 p.m. Pacific Time on May 5, 2008 and the date of this Agreement: (i) the Company has not granted any Company Options; (ii) no outstanding Company Option has been amended, modified or changed; and (iii) Part 2.3(d) of the Company Disclosure Schedule shall have only changed to the extent that outstanding Company Options have been exercised in accordance with their terms. All Company Options (including those that have been exercised, terminated, expired, forfeited or otherwise cancelled) were issued at a strike price at least equal to fair market value such that the fair market value on the grant date equaled or exceeded the fair market value on the financial measurement date for each such Company Option or, with respect to Company Options that were not issued in such a manner, the Company recorded an appropriate compensation charge in its financial statements relating to such grants in the appropriate period and reported such in its financial statements and Company Returns during the required period.
(e) Except for options, rights, securities, convertible notes securities and plans referred to in Section 3.3(a2.3(a) and except as set forth in Part 2.3(d) of the Company Rights Disclosure Schedule, as of the date of this Agreement, there are no outstanding is no: (i) outstanding subscription, option, call, warrant or stock appreciation right or other right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company convertible into or exchangeable for shares any Subsidiary of capital stock of or other voting securities or equity interests in the Company, ; (ii) optionsoutstanding restricted stock award, warrants restricted stock unit award, performance stock award or other rights performance cash award; (iii) outstanding security, instrument or arrangements obligation that is or would reasonably be expected to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities become convertible into or exchangeable for any capital stock shares of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem the Company; (iv) contract under which the Company or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (v) to the Knowledge of the Company, condition or circumstance that would reasonably be expected to provide a basis for the assertion of a valid claim by any Person to the effect that such Person is entitled to acquire or receive any capital stock of the Company or other securities of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock, options, warrants, stock appreciation rights and other securities or other equity interests of each Subsidiary the Company and the Designated Subsidiaries have been issued and granted in compliance in all material respects with all applicable securities laws and other applicable Legal Requirements.
(g) All of the outstanding membership interests or other equity interests of each of the Company’s Subsidiaries: (i) the Securities Act have been duly authorized and other Legal Requirements and validly issued; (ii) all requirements are nonassessable and free of Material Contractspreemptive rights, with no obligation to contribute additional capital; and (iii) except as set forth in Part 2.3(g) of the Company Disclosure Schedule, are owned beneficially and of record by the Company, free and clear of any Encumbrances (other than Permitted Encumbrances).
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Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 35,000,000 Company Shares, 1,000,000 Shares and 2,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share preferred stock (“"Preferred Shares”"), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23July 19, 20072005: (i) 373,641,481 14,978,324 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 , including 565,466 unvested restricted Company Shares were held by the Company as treasury sharesShares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B 200,000 Preferred Shares were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 options to purchase 344,058 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Sharesoutstanding; and (v) approximately 34,762,457 564,670 Company Shares were reserved remained available for future issuance upon conversion of or grant pursuant to the Company Convertible NotesOption Plan. Since August 23Between July 19, 20072005 and the date of this Agreement, (A) the Company has not issued any Company Shares other than as a result of in connection with the exercise of stock options outstanding on July 19, 2005, and (B) the Company Options reflected has not granted any stock options. Except as set forth in this Section 3.3(a), at the immediately preceding sentence as outstanding as close of August 23business on July 19, 20072005 no shares of capital stock of the Company were issued, reserved for issuance or outstanding. All of the issued and outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, are duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) nonassessable. The Company has delivered or made available to Parent copies of: of (A1) the Company Stock PlansOption Plan, which cover covers all of the stock options and unvested restricted stock awards granted by the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , and (B2) the forms of all stock option agreements and restricted stock award agreements with respect to the Company Stock Plans. The Company does not maintain an employee evidencing such options and stock purchase planawards.
(cb) Except for options, rights, securities, convertible notes securities and plans referred to in Section 3.3(aPart 3.3(c) or Part 3.3(d) of the Company Disclosure Schedule and in the Company Rights Agreement, as of the date of this Agreement, there are is no outstanding option, warrant, call, right, convertible or exchangeable security, "phantom" stock right, stock appreciation right, stock-based performance unit, commitment, contract, arrangement or undertaking of any kind to which the Company or any of its Subsidiaries is a party or by which any of them is bound (i) securities obligating the Company or any of its Subsidiaries to issue, deliver, sell or transfer or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or any security convertible into or exercisable for or exchangeable for shares of into any capital stock of of, or other voting securities equity interest in, the Company or equity interests in the Companyany of its Subsidiaries, (ii) options, warrants obligating the Company or other rights or arrangements to acquire or other obligations or commitments any of its Subsidiaries to issue, grant, extend or enter into any capital stock of such option, warrant, call, right, security, commitment, contract, arrangement or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company undertaking or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock that gives any Person the right to receive from the Company or similar securities any of its Subsidiaries any economic benefit or right determined by reference to the economic benefits and rights accruing to acquire any holders of capital stock of, or other voting securities equity interests in, the Company or ownership interests in the Companyany of its Subsidiaries.
(dc) Section 3.3(dPart 3.3(c) of the Company Disclosure Schedule sets forth (i) contains a schedule as of the date each Company Option was granted, (ii) of this Agreement setting forth the number of shares of underlying each outstanding stock option granted by the Company Shares subject to each such Company Optionand the exercise price, vesting date (iiior dates) the number of vested Company Shares subject to each such Company Option, (vi) the and expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercisedstock option. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there There are no Company Shares outstanding which are subject to vesting over time preemptive or upon the satisfaction similar rights held by any holder of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness class of the Company having the right to vote outstanding and (ii) no outstanding obligations securities of the Company or any of its Subsidiaries with respect to repurchasesuch securities. All outstanding unvested stock options granted by the Company will accelerate at or prior to the Effective Time, redeem and all outstanding stock options granted by the Company will terminate at or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary prior to the Effective Time.
(d) Part 3.3(d) of the Company owns Disclosure Schedule contains a schedule as of the date of this Agreement setting forth the holders of restricted Company Shares granted pursuant to the Company Option Plan and the vesting date (or dates) of such restricted Company Shares. Other than repurchase rights in connection with the restricted Company Shares listed in Part 3.3(d) of the Company Disclosure Schedule, as of the date of this Agreement, the Company does not have repurchase rights with respect to any other securities of the Company.
(e) Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations providing the holders of which the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company or any of its Subsidiaries on any matter submitted to such stockholders or to a separate class of holders of capital stock of the Company or any of its Subsidiaries.
(f) Except for this Agreement, the Transaction Support Agreements and any other agreements or arrangements contemplated by this Agreement, there are no voting trusts, voting agreements or similar agreements or other arrangements to which the Company is a party or by which the Company is bound with respect to the voting of capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.
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