Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 shares of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws. (b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 4 contracts
Sources: Merger Agreement (Skullcandy, Inc.), Merger Agreement (Mill Road Capital II, L.P.), Merger Agreement (Mill Road Capital II, L.P.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 800,000,000 shares of Company Common Stock and 10,000,000 200,000,000 shares of Company preferred stock, no par value (the “Preferred Stock”). At the close As of business on July 26June 30, 20162005, (ia) 28,746,664 164,743,371 shares of Company Common Stock were are issued and outstanding; , all of which are validly issued, fully paid and nonassessable and free of preemptive rights, (iib) no 1,000,000 shares of Company Preferred Common Stock were issued and outstanding; are held in the treasury of the Company, (iiic) 4,826,402 8,729,809 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance Options are outstanding pursuant to outstanding awards and rights under the Company Stock Plans and (v) under Option Plan, each such option entitling the Company Stock Plans, there were outstanding Company Options holder thereof to purchase 2,576,792 shares one share of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all 8,729,809 shares of Company Common Stock that may be issued are authorized and reserved for future issuance pursuant to the exercise of such Company Options, (d) no shares of Preferred Stock are issued and outstanding, (e) there are 160,000 warrants issued and outstanding Company Stock Awards or vesting to purchase an aggregate of 2,074,241 shares of Company RSU Awards will be Common Stock (when the “IWO Warrants”), (f) there are 11 warrants issued in accordance and outstanding to purchase an aggregate of 546,397 shares of Company Common Stock (the “Founder Warrants” and, together with the terms thereofIWO Warrants, the “Company Warrants”), duly authorized and validly (g) 1,355,000 shares of Restricted Stock are issued and outstanding and (h) 1,812,052 Assumed Options are fully paid and nonassessable and are free outstanding, each such option entitling the holder hereof to purchase one share of preemptive rightsCompany Common Stock. Section 4.2(a) 3.2 of the Company Disclosure Letter contains sets forth a true, correct true and complete list, as of the date hereofJune 30, 2005, of all the outstanding Company Stock AwardsOptions, indicating as applicableAssumed Options and Company Warrants, with respect the exercise price of each such options and warrants. Since June 30, 2005, (i) no shares of Company Common Stock have been issued other than pursuant to each the exercise of Company Stock Award then outstandingOptions, Assumed Options or Company Warrants and (ii) no Company Options, Assumed Options or Company Warrants have been issued. Except as set forth above, there are no options, warrants, convertible securities, subscriptions, stock appreciation rights, phantom stock plans or stock equivalents or other rights, agreements, arrangements or commitments (contingent or otherwise) of any character issued or authorized by the Company or any Subsidiary relating to the issued or unissued capital stock of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or options, warrants, convertible securities, subscriptions or other equity interests in, the type of Company Stock Award granted, the number of or any Subsidiary. All shares of Company Common Stock subject to such Company Stock Awardissuance as aforesaid, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are upon issuance on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests terms and conditions specified in the Companyinstruments pursuant to which they are issuable, (B) optionswill be duly authorized, warrantsvalidly issued, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) fully paid and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stocknonassessable. There are on the date hereof no outstanding contractual obligations of the Company or any of its Subsidiaries Subsidiary to purchaserepurchase, redeem or otherwise acquire any shares of Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company Common Stock or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company any Subsidiary or (ii) outstanding contractual obligations to provide funds to pay any dividend or make any other distribution in respect thereof or make any investment (in the form of a loanloan or capital contribution) in, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiaryperson. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company owns (either directly or another indirectly) beneficially and of its Subsidiaries is the record and beneficial owner all of all the issued and outstanding shares of capital stock of each Subsidiary of the Companyand does not own an equity interest in any other corporation, free and clear of any Lien (partnership or entity, other than Permitted Liens)in the Subsidiaries. No bonds, and there are no proxies with respect to any such shares. There are no outstanding (i) securities debentures, notes or other indebtedness of the Company or any of its Subsidiaries convertible into having the right to vote on any matter on which shareholders may vote are issued or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesoutstanding.
Appears in 4 contracts
Sources: Merger Agreement (Us Unwired Inc), Agreement and Plan of Merger (Sprint Corp), Agreement and Plan of Merger (Sprint Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 400,000,000 shares of Company Common Stock Stock, 20,000,000 shares of Class B common stock of the Company and 10,000,000 shares of Class F common stock of the Company, each with a par value of $0.0001 per share and 10,000,000 shares of preferred stock of the Company (“Company Preferred Stock”), including 55,000 shares of Series A Redeemable Convertible Preferred Stock (“Series A Preferred Stock”) and 22,050 shares of Series B Redeemable Convertible Preferred Stock. At the close As of business on July 26June 21, 20162022 (“Company Capitalization Date”), (i) 28,746,664 shares of Company Common Stock there were issued and outstanding; outstanding (iiA) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 77,060,612 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (vB) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 19,610 shares of Company Common Series A Preferred Stock, and outstanding (C) Company RSU Awards DSUs with respect to 1,813,980 an aggregate of 2,052,474 shares of Company Stock. From such date until the date hereof, neither all of which were issued under the Company nor any of its Subsidiaries has issued any LTIP, and (ii) 5,414,193 shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any Company Stock are reserved under the Company LTIP. All the outstanding shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have beenStock are, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (reserved for issuance as described above shall be, when issued in accordance with the respective terms thereof), duly authorized and authorized, validly issued and are issued, fully paid and nonassessable and are free of preemptive rights.
(b) Section 4.5(b) of the Company Disclosure Letter, sets forth a true and complete list, of (i) each Company Equity Award, (ii) the name of the Company Equity Award holder, (iii) the number of shares of Company Stock underlying each Company Equity Award, (iv) in the case of any Pool A Performance Award or Pool B Performance Award, the Accumulated Cash Award Value, (v) the date on which the Company Equity Award was granted (vi) the vesting schedule with respect to the Company Equity Award, including any right of acceleration of such vesting schedule, (vii) the exercise price of each Company Equity Award, if applicable, and (viii) the expiration date of each Company Equity Award, if applicable. The Company LTIP permits the treatment of Company Equity Awards described in Article III.
(c) Section 4.2(a4.5(c) of the Company Disclosure Letter contains sets forth a true, correct true and complete list, as of (i) each Warrant, (ii) the name of the date hereofWarrant holder, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, (iii) the number of shares of Company Common Stock subject underlying such Warrant and (iv) the exercise price of such Warrant.
(d) Section 4.5(d) of the Company Disclosure Letter sets forth a true and complete list of (i) each Equity Linked Convertible Note, (ii) the name of the Equity Linked Convertible Note holder, (iii) the amount outstanding under such Equity Linked Convertible Note and (iv) the conversion price of such Equity Linked Convertible Note.
(e) Except (w) as set forth in Section 4.5(e) of the Company Disclosure Letter, (x) for any awards issued pursuant to such the Company Stock Award, LTIP after the date of grantthis Agreement in accordance with the terms of this Agreement (all of which will be set forth on an updated Company Disclosure Letter delivered five (5) Business Days prior to the Closing and which otherwise will comply with the last sentence of Section 4.5(a)), (y) for any shares of Company Stock issued upon the exercise or purchase price and expiration thereof. Except for of any Company Equity Award, in each case, that were outstanding on the Company Stock AwardsCapitalization Date or subsequently granted under the Company LTIP or otherwise in accordance with the terms of this Agreement and (z) the Warrants and the Equity Linked Convertible Notes, there are on the date hereof no issued, reserved for issuance or outstanding (Ai) shares of capital stock or other voting securities of or other ownership interests in the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or other voting securities of or other ownership interests in the Company, (Biii) options, warrants, calls, pre-emptive rights, subscriptions, rights options or other agreements or commitments requiring rights to acquire from the Company to issueCompany, or other obligations obligation of the Company to issue, any shares of capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or other voting securities of or other ownership interests in) in the Company or (oriv) restricted shares, in each casestock appreciation rights, the economic equivalent thereof)performance units, (C) obligations of restricted stock units, contingent value rights, “phantom” stock or similar securities or rights issued or granted by the Company to grantor any of its Subsidiaries that are derivative of, extend or enter into provide economic benefits based, directly or indirectly, on the value or price of, any subscription, warrant, right, convertible or exchangeable security shares of capital stock or other similar agreement or commitment relating to any capital stock, voting securities of or other ownership interests in the Company (the items in clauses (A), i) through (Biv) and (C), together with the capital stock of the Company, being referred to collectively as the “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws).
(bf) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, and neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of maintains an employee stock purchase plan. Neither the Company or any other Person. There are not outstanding obligations to which the Company or nor any of its Subsidiaries is a party restricting to any voting trust, proxy, voting agreement or other similar agreement with respect to the transfer ofvoting of any Company Securities. All outstanding shares of capital stock of the Company have been, and all shares that may be issued pursuant to any equity compensation plan or arrangement will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued, fully paid and nonassessable and free of preemptive rights. No Subsidiary of the Company owns any shares of capital stock of the Company or any Company Securities. There are no outstanding bonds, debentures, notes or other indebtedness of the Company having the right to vote (whether on an as-converted basis or otherwise) (or convertible into, or limiting exchangeable for, securities having the exercise right to vote) on any matters on which stockholders of voting rights with respect to, any Subsidiaries Securitiesthe Company may vote.
Appears in 4 contracts
Sources: Merger Agreement (U.S. Well Services, Inc.), Merger Agreement (U.S. Well Services, Inc.), Merger Agreement (ProFrac Holding Corp.)
Capitalization. (a) The authorized share capital stock of the Company consists of 200,000,000 shares of Company Common Stock and 10,000,000 shares of common stock, par value $0.10 per share, of the Company Preferred (the “Company Common Stock. At ”).
(b) As of May 23, 2024 (the close of business on July 26, 2016, “Capitalization Date”): (i) 28,746,664 1,759,954 shares of Company Common Stock were issued and outstanding, all of which are duly authorized, validly issued, fully paid and nonassessable and were issued free of preemptive (or similar) rights; (ii) 1,659,999 shares of Company Common Stock were held in the treasury of the Company; (iii) no shares of Company Preferred Common Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasurySubsidiaries; (iv) an aggregate of 4,390,772 11,029 shares of Company Common Stock were reserved for future issuance pursuant to outstanding awards and rights under in connection with the Company Stock Plans and (v) of which 9,785 shares of Company Common Stock were subject to outstanding Company RSUs under the Company Stock Plans, there including 1,808 Director DSUs and 1,778 Company PSUs (assuming satisfaction of any market- or performance-based conditions at target); and (v) 1,244 Company RSUs, none of which were Company PSUs or Director DSUs, were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither other than under the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stockStock Plans. All of Shares subject to issuance as aforesaid, upon issuance on the outstanding Company Shares have been, terms and all shares of Company Common Stock that may be issued conditions specified in the instruments pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards which they are issuable, will be (when issued in accordance with the terms thereof)duly authorized, duly authorized and validly issued and are issued, fully paid and nonassessable and are free of preemptive (or similar) rights. Section 4.2(a.
(c) of the The Company Disclosure Letter contains has previously provided a true, correct true and complete list, as of the date hereofCapitalization Date, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such or denominated by each outstanding Company Stock AwardRSU, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities name of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each caseholder, the economic equivalent thereofgrant date, the vesting schedule (including acceleration provisions), (C) obligations of the Company to grant, extend whether settled in cash or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock, whether settled on a current or deferred basis, whether subject to equity or liability accounting treatment under applicable accounting principles, and the Company Stock Plan pursuant to which such Company RSU was granted (if applicable). There are on Since the Capitalization Date through the date hereof no outstanding obligations of hereof, the Company has not granted any Company RSUs or any of its Subsidiaries to purchase, redeem or otherwise acquire other equity incentive awards (whether under any Company Securities. Stock Plan or otherwise).
(d) There are no bonds, debentures, notes or other indebtedness having general voting rights (or convertible into securities having such rights) with respect to the Company or of any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock member of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the Group issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable reserved for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Companyissuance. There are no outstanding obligations under Contract or otherwise of any member of the Company or any of its Subsidiaries Group to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All Equity Interests of the outstanding shares of capital stock of the Subsidiaries any member of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of Group or any other person, or granting any preemptive rights. Except for Subsidiary Securities, neither subscription rights, anti-dilutive rights, rights of first refusal or similar rights with respect to any Equity Interests of any member of the Company nor Group or any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interestsother person, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary member of the Company Group or any other Personperson. There are not outstanding obligations to which None of the Company or nor any other member of its Subsidiaries the Company Group is a party restricting the transfer ofto any stockholders’ agreement, voting trust agreement or limiting the exercise of registration rights agreement relating to any Equity Interests or any other Contract relating to disposition, voting rights or dividends with respect toto any Equity Interests.
(e) There are no Equity Interests or outstanding equity awards of the Company obligating the Company to issue, sell or grant any Subsidiaries SecuritiesEquity Interests of any member of the Company Group.
Appears in 4 contracts
Sources: Merger Agreement (Nordson Corp), Merger Agreement (Nordson Corp), Merger Agreement (Nordson Corp)
Capitalization. (a) The authorized share capital stock of the Company consists of 200,000,000 $1,630,185.83 divided into 1,076,416,910 shares of Company Common Stock and 10,000,000 shares of Company Preferred Stockpar value $0.015144558 each. At the close of business on July 26August 24, 20162018 (the “Capitalization Date”), (i) 28,746,664 shares of 59,692,594 Company Common Stock Shares were issued and outstanding; , (ii) no shares of Company Preferred Stock 11,000,000 5.95% Preference Shares were issued and outstanding; , (iii) 4,826,402 10,000,000 5.625% Preference Shares were issued and outstanding, (iv) no Company Shares were held by the Company in as treasury shares or held by its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and Subsidiaries, (v) under the 847,153 Company Stock Plans, there Shares were outstanding Company Options to purchase 2,576,792 shares issuable in respect of Company Common Stock, and outstanding Company RSU Awards with respect and Company Performance Units, measured at the target level of performance and (vi) 286,919 Company Shares were subject to 1,813,980 shares Company Phantom Share awards measured at target level of performance (which Company Phantom Share awards are, by their terms, settled solely in cash). The number of Company Stock. From Shares that could be acquired with accumulated payroll deductions under the Company ESPP at the close of business on the purchase date for any offering period in effect as of the date of this Agreement (assuming (A) the market price of a Company Share as of the close of business on the business day immediately preceding such date until is equal to the Merger Consideration, (B) such date represents the last day of the current offering period, and (C) payroll deductions continue at the current rate) does not exceed 75,858 Company Shares. Since the Capitalization Date through the date hereofof this Agreement, other than in connection with the vesting, settlement, or exercise of Company Awards outstanding on the Capitalization Date and included in the second sentence of this Section 4.02(a) or the issuance of Company Share Purchase Plan Awards included in the immediately preceding sentence, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards Company Securities.
(b) Except as set forth in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereofSection 4.02(a), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awardsthis Agreement, there are on were (i) no issued and outstanding Company Shares or other equity or voting interests in the date hereof Company, (ii) no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock Company Shares or other equity or voting securities or ownership interests in the Company, (Biii) no outstanding options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of commitments or agreements to acquire from the Company, or that obligate the Company to issue, any capital stock, voting securities Company Shares or other ownership equity or voting interests in (in, or any securities convertible into or exchangeable for capital stock Company Shares or other equity or voting securities or other ownership interests in) in the Company (or, in each case, the economic equivalent thereof)Company, (Civ) no obligations of the Company to grant, extend extend, or enter into any subscription, warrant, right, convertible or exchangeable security security, or other similar agreement or commitment relating to any capital stockCompany Shares, voting securities or other ownership equity or voting interests in in, the Company (collectively, “Company Rights” and the items in clauses (Ai), (Bii), (iii) and (C), together with the capital stock of the Company, iv) being referred to collectively to, collectively, as “Company Securities”) or and (Dv) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any Company Securities or dividends paid thereon. Other than in connection with the shares of Company Common Stock. There are Awards outstanding on the date hereof Capitalization Date and included in the second sentence of Section 4.02(a) or Company Share Purchase Plan Awards included in the third sentence of Section 4.02(a), there are no outstanding obligations agreements or instruments of any kind that obligate the Company or any of its Subsidiaries to purchaserepurchase, redeem redeem, or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights Securities (or convertible into securities having such rights) with respect to obligate the Company to grant, extend, or enter into any such agreements relating to any Company Subsidiary issued and outstanding. There are no (iSecurities) voting trusts or other agreements or understandings to which that grant from the Company or any of its Subsidiaries is a party with respect to the voting any preemptive rights, subscription rights, anti-dilutive rights, rights of capital stock of the Company first refusal, or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies similar rights with respect to any such sharesCompany Securities. There are no outstanding With respect to each Company Award, Section 4.02(b) of the Company Disclosure Letter sets forth (i) securities the name of the holder of such Company Award, (ii) the type of award, (iii) the number of Company Shares subject to such Company Award, (iv) the grant date of such Company Award, (v) the vesting schedule applicable to such Company Award, and (vi) the Company Share Plan under which such Company Award was granted. Except as described in this Section 4.02, no direct or indirect Subsidiary of the Company owns any Company Securities. None of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments Company is a party to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stockshareholders’ agreement, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Companytrust agreement, (iii) obligations of the Company or any of its Subsidiaries to grantregistration rights agreement, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment understanding relating to any capital stock, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company Securities or any of its Subsidiaries other agreement relating to make the disposition, voting, or dividends with respect to any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the issued and outstanding shares of capital stock of the Subsidiaries of the Company Shares have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights. Except There are no accrued or unpaid dividends or dividend equivalent rights with respect to any Company Shares, Company Performance Units, or Company RSU Awards, except for Subsidiary Securitiesthe Per Share Accrued Dividend Equivalents.
(c) The Company Shares, neither the 5.95% Preference Shares, and the 5.625% Preference Shares constitute the only issued and outstanding classes of equity securities of the Company nor any of and its Subsidiaries owns registered under the Exchange Act.
(d) Section 4.02(d) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of the name and jurisdiction of incorporation or organization of each Subsidiary of the Company. All of the issued and outstanding shares, share capital or shares of capital stock of, or other equity or voting interests in, each Subsidiary of the Company (except for directors’ qualifying shares or the like) are owned, directly or indirectly any equity interests in any Personindirectly, beneficially and of record, by the Company, free and clear of all Liens and material transfer restrictions, except for such Liens and transfer restrictions of general applicability as may be provided under the Securities Act, other applicable securities Laws, or has Insurance Laws (including any obligation restriction on the right to acquire any such equity interestsvote, sell, or otherwise dispose of such shares, share capital, shares of capital stock, or other equity or voting interests). Each issued and outstanding share, share capital, or share of capital stock of each Subsidiary of the Company that is held, directly or indirectly, by the Company is duly authorized, validly issued, fully paid, nonassessable, and free of preemptive rights, and there are no subscriptions, options, warrants, rights, calls, contracts, or other commitments, understandings, restrictions, or arrangements relating to provide funds to the issuance, acquisition, redemption, repurchase, or make sale of any investment (in the form shares, share capital, or shares of a loan, capital contribution stock or otherwise) in other equity or voting interests of any Subsidiary of the Company Company, including any right of conversion or exchange under any outstanding security, instrument or agreement, and agreement granting any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal, or similar rights (to Persons other Person. There are not outstanding obligations to which than the Company or any Subsidiary of its the Company) with respect to any securities of any Subsidiary of the Company. None of the Subsidiaries is a party restricting of the transfer Company has any outstanding equity compensation plans relating to the share capital of, or limiting the exercise of other equity or voting rights with respect tointerests in, any Subsidiaries SecuritiesSubsidiary of the Company.
Appears in 4 contracts
Sources: Merger Agreement (Aspen Insurance Holdings LTD), Merger Agreement (Aspen Insurance Holdings LTD), Merger Agreement (Aspen Insurance Holdings LTD)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares 25,000,000 shares, $0.01 par value per share, of Company Common Stock and 10,000,000 shares shares, $0.01 par value per share, of preferred stock (the "Company Preferred Stock"). At As of the close date of business on July 26, 2016, this Agreement: (i) 28,746,664 10,715,119 shares of Company Common Stock were issued and outstanding; , and no shares of Company Preferred Stock were issued or outstanding, (ii) no shares of Company Common Stock were reserved for issuance except that (A) 1,579,337 shares of Company Common Stock have been reserved for issuance pursuant to the 1994 Company Stock Option and Incentive Plan, of which 1,082,334 may be issued in the future upon the exercise of options currently outstanding and (B) 526,813 shares of Company Common Stock have been reserved for issuance pursuant to the 1994 Company Employee Stock Purchase Plan, of which 19,037 shares are estimated to be the number of shares of Company Common Stock which will be issued pursuant to contributions by employees of the Company under the 1994 Company Employee Stock Purchase Plan during calendar year 1997, and (C) 31,857 shares of Company Common Stock have been reserved for issuance at par value on or about September 30, 1997 pursuant to an employment agreement with a former employee, (iii) no shares of Company Preferred Stock were issued reserved for issuance and outstanding; (iiiiv) 4,826,402 242,185 shares of Company Shares Common Stock were held by the Company in its treasury; (iv) an aggregate . All of 4,390,772 shares of Company Stock were reserved for issuance pursuant to the issued and outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common StockStock have been duly authorized and are validly issued, fully paid, and nonassessable. Except as indicated hereinabove, there are no outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereofor authorized options, neither warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require the Company nor or any of its Subsidiaries has issued any shares of its capital stockSubsidiary thereof to issue, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stocksell, or granted otherwise cause to become outstanding any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company SecuritiesSubsidiary thereof. There are no bondsoutstanding or authorized stock appreciation, debenturesphantom stock, notes profit participation, or other indebtedness having voting similar rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect Subsidiaries. After giving effect to the voting of capital stock of transactions contemplated by the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loanShare Exchange and Termination Agreement, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company are wholly owned directly or indirectly by the Company and have been duly authorized and are validly issued and are issued, fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesnonassessable.
Appears in 3 contracts
Sources: Merger Agreement (Cable Systems Holding LLC), Merger Agreement (Ipc Information Systems Inc), Agreement and Plan of Merger (Cable Systems Holding LLC)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 500,000,000 shares of Company Common Stock and 10,000,000 25,000,000 shares of preferred stock, par value $1.00 per share ("Company Preferred Stock"). At the close As of business on July 26January 29, 20161999, (i) 28,746,664 120,771,293 shares of Company Common Stock were issued and outstanding; , all of which were duly authorized, validly issued, fully paid and nonassessable and were issued free of preemptive (or similar) rights, (ii) no 19,346,205 shares of Company Preferred Common Stock were issued held in the treasury of the Company and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 7,626,428 shares of Company Common Stock were reserved for issuance and issuable upon or otherwise deliverable in connection with the exercise of outstanding Company Stock Options issued pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plansas defined in Section 3.10). Since January 29, there were outstanding Company Options 1999, no options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be have been granted and no shares of Company Common Stock have been issued except for shares issued pursuant to the exercise of outstanding Company Stock Awards or vesting Options outstanding as of January 29, 1999. No shares of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly Preferred Stock are issued and are fully paid and nonassessable and are free of preemptive rightsoutstanding. Section 4.2(aExcept (i) as set forth above, (ii) as a result of the exercise of Company Disclosure Letter contains a true, correct and complete list, Stock Options outstanding as of the date hereofJanuary 29, of all Company Stock Awards1999, indicating as applicable, (iii) with respect to each no more than 50,000 options granted to Company Stock Award then outstandingemployees since January 29, 1999 and prior to the type of Company Stock Award granted, Effective Time consistent with past practice and (iv) Rights issued pursuant to the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock AwardsRights Plan, there are on the date hereof no outstanding (Aa) no shares of capital stock or other voting securities of the Company, (b) no securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in of the Company, (Bc) options, warrants, calls, pre-emptive rights, subscriptions, rights no options or other agreements or commitments requiring rights to acquire from the Company, and no obligation of the Company to issue, deliver or other obligations of the Company sell or cause to issuebe issued, delivered or sold, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) obligations of the Company to grantand (d) no equity equivalents, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) ownership or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations earnings of the Company or any of its Subsidiaries to purchaseother similar rights (collectively, redeem or otherwise acquire any "Company Securities"). There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to Other than the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loanPlans, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities or outstanding Subsidiary Securities. All material obligations of the outstanding shares Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any capital stock of any subsidiary. There are no other options, calls, warrants or other similar rights (other than Rights issued pursuant to the Rights Plan), agreements, arrangements or commitments relating to the issued or unissued capital stock of the Subsidiaries Company or any of its subsidiaries to which the Company have been or any of its subsidiaries is a party. All shares of Company Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized and authorized, validly issued and are issued, fully paid and nonassessable and are free of preemptive (or similar) rights and registration rights. Except for Subsidiary Securities, neither There are no outstanding contractual obligations of the Company nor or any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or subsidiaries to provide funds in any material amount to or make any material investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary such subsidiary or any other entity.
(b) rights, charges or other encumbrances of any nature whatsoever, except for such failures to own such shares free and clear as would not, individually or in the aggregate, have a Material Adverse Effect. The Company has delivered to Parent prior to the date hereof a chart of the subsidiaries of the Company which evidences, among other things, the percentage of capital stock or other equity interests owned by the Company, directly or indirectly, in such subsidiaries as of the date hereof. No entity in which the Company owns less than a 50% interest and which is not disclosed in such chart, is, individually or when taken together with all such other entities, material to the business of the Company and its subsidiaries, taken as a whole.
(c) No bonds, debentures, notes or other indebtedness of the Company having the right to vote on any other Person. matters on which holders of capital stock of the Company may vote ("Company Voting Debt") are issued and outstanding.
(d) There are not outstanding obligations no voting trusts, proxies or other agreements or commitments of any character to which the Company or any of its Subsidiaries "significant subsidiaries" (as defined in Regulation S-X) is a party restricting or by which the transfer of, Company or limiting the exercise any of voting rights its significant subsidiaries is bound with respect toto the voting of any shares of capital stock of the Company or any of its significant subsidiaries or with respect to the registration of the offering, sale or delivery of any Subsidiaries Securitiesshares of capital stock of the Company or any of its significant subsidiaries under the Securities Act.
Appears in 3 contracts
Sources: Merger Agreement (Rohm & Haas Co), Merger Agreement (Morton Acquisition Corp), Merger Agreement (Rohm & Haas Co)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 50,000,000 Company Common Shares and 1,000,000 shares of preferred stock. As of the date hereof, (a) 14,484,976 Company Common Stock Shares, all of which are validly issued, fully paid and 10,000,000 shares nonassessable and free of Company Preferred Stock. At the close of business on July 26preemptive rights, 2016, (i) 28,746,664 shares of Company Common Stock were are issued and outstanding; , (iib) no shares Company Common Shares are held in the treasury of Company Preferred Stock were issued and outstanding; the Company, (iiic) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of 1,985,033 Company Stock were reserved for issuance Options are outstanding pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options each such option entitling the holder thereof to purchase 2,576,792 shares of one Company Common StockShare, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of 1,651,227 Company Common Stock that may be issued Shares are authorized and reserved for future issuance pursuant to the exercise of outstanding such Company Stock Awards or vesting Options, (d) 13,345 Company Warrants are outstanding, each such Company Warrant entitling the holder thereof to purchase one Company Common Share, and 13,345 Company Common Shares are authorized and reserved for future issuance pursuant to the exercise of such Company RSU Awards Warrants and (e) no shares of preferred stock are issued and outstanding. All Company Warrants will be (when issued terminated as a result of the Merger in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rightsthereof if not exercised prior to the Effective Time. Section 4.2(a) Schedule 4.3 of the Company Disclosure Letter contains sets forth a true, correct true and complete listlist of the Company Stock Options outstanding as of the date of this Agreement with the exercise prices and periods of exercisability. Except as set forth above, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awardsthis Agreement, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for Stock Rights. All shares of capital stock or voting securities or ownership interests subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the Companyinstruments pursuant to which they are issuable, (B) optionswill be duly authorized, warrantsvalidly issued, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other fully paid and nonassessable. There are no outstanding contractual obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes Common Shares or to pay any dividend or make any other indebtedness having voting rights (distribution in respect thereof or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to financing to, or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or in, any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such SubsidiaryPerson. All outstanding securities As of the Company have been offered and issued in compliance in all material respects with all applicable securities lawsdate hereof, including except for the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the CompanyStockholders Agreements, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights trusts or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations understandings to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesto the voting of stock of the Company.
Appears in 3 contracts
Sources: Merger Agreement (Ivillage Inc), Merger Agreement (Ivillage Inc), Merger Agreement (Promotions Com Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 510,000,000 shares, of which 500,000,000 shares of Company are designated Common Stock and 10,000,000 shares of Company are designated preferred stock, par value $0.001 per share (the “Preferred Stock”). At the close As of business on July 26December 31, 2016, 2012: (i) 28,746,664 40,121,660 shares of Company Common Stock and no shares of Preferred Stock, were issued and outstanding; and (ii) no shares of Company Common Stock or Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the such issued and outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and are validly issued and are fully paid and nonassessable nonassessable. No issued and outstanding shares of the Company’s capital stock are free subject to a repurchase or redemption right or right of preemptive rights. first refusal or condition of forfeiture in favor of the Company.
(b) Except as set forth on Section 4.2(a3.2(b) of the Company Disclosure Letter contains Schedule, there are no outstanding subscriptions, options, contracts, commitments, restrictions, stock appreciation rights, phantom stock, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement and also including any rights plan or other anti-takeover agreement, obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of the Company’s capital stock. There are no voting trusts, proxies or other agreements or understandings to which the Company is a true, correct and complete listparty or is bound with respect to the voting of any shares of the Company’s capital stock. Section 3.2(b) of the Company Disclosure Schedule sets forth the number of shares of Common Stock issuable, as of the date hereofof this Agreement, upon (i) the exercise of outstanding Company Options and Company Warrants, and (ii) the vesting of outstanding Company Restricted Shares. The Company Options, the Company Warrants and Company Restricted Shares are collectively referred to as “Company Stock-Based Securities”. All shares of Common Stock issuable upon exercise of Company Options, Company Warrants or other Company Stock-Based Securities have been duly reserved for issuance by the Company, and upon issuance of such shares of Common Stock in accordance with the terms of the applicable Company Equity Plan or other arrangement, will be duly authorized, validly issued and fully paid and non-assessable and will not be subject to any preemptive or similar rights. No Company Option was granted with an exercise price less than the fair market value of the Company Option on the date of grant.
(c) Section 3.2(c) of the Company Disclosure Schedule sets forth a complete and accurate list of all record holders of outstanding Company Stock AwardsStock-Based Securities, indicating as applicable, with respect to each of the Company Stock Award then outstandingStock-Based Securities, the type of Company Stock Award granted, (i) the number of shares of Company Common Stock subject to such Company Stock AwardStock-Based Securities (whether by exercise, conversion or vesting), held by each such record holder, (ii) the exercise or conversion price, date of grant, exercise issuance or purchase price grant and expiration thereofdate, if any, of such Company Stock-Based Securities, and (iii) the particular Company Equity Plan pursuant to which such Company Stock-Based Security was granted or issued. Except for the The Company Stock Awards, there are on the date hereof no outstanding (A) securities has made available to Parent accurate and complete copies of each of the Company convertible into Equity Plans and the standard form of all agreements and instruments relating to or exchangeable for shares issued under each Company Equity Plan and all agreements and instruments relating to or issued under the Company Equity Plans that differ in any material respect from such standard form agreements.
(d) As of capital stock or voting securities or ownership interests in the Companydate hereof, (Bi) optionsno bonds, warrantsdebentures, calls, pre-emptive rights, subscriptions, rights notes or other agreements or commitments requiring the Company to issue, or other obligations indebtedness of the Company having the right to issuevote are issued or outstanding, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”ii) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There there are on the date hereof no outstanding contractual obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of ’s capital stock or other voting any equity securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesSubsidiary.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Zipcar Inc), Merger Agreement (Avis Budget Group, Inc.)
Capitalization. (ai) The authorized capital stock of the Company consists of 200,000,000 shares 600,000,000 Company Shares, and 40,000 Company Deferred Shares. As of December 9, 2022 (the “Company Common Stock and 10,000,000 shares of Capitalization Date”), there were outstanding (A) 226,962,593 Company Preferred Stock. At the close of business on July 26, 2016Shares, (iB) 28,746,664 shares of 40,000 Company Common Stock were issued and outstanding; Deferred Shares, (iiC) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) Options to purchase an aggregate of 4,390,772 4,997,294 Company Shares, (D) Company RSU Awards (other than the Company PSU Awards) providing for the issuance of up to an aggregate of 3,581,805 Company Shares and (E) Company PSU Awards providing for the issuance of up to an aggregate of 1,909,313 Company Shares, determined assuming the maximum number of shares to be issued under the Company PSU Awards. As of December 9, 2022, (X) 21,101,438 additional Company Stock Shares were reserved for issuance pursuant to the Company Share Plans (excluding the Company ESPP), and (Y) 2,046,575 additional Company Shares were reserved for issuance pursuant to the Company ESPP. Except as set out in this Section 6.1(c) and for changes since the Company Capitalization Date resulting from (x) the exercise or vesting and settlement of the Company Equity Awards outstanding awards and rights on such date (in accordance with their existing terms in effect as of the date of this Agreement) or issued on or after such date to the extent permitted by Section 5.1 (as qualified by or permitted under the Company Stock Plans and Disclosure Schedule) or (vy) the issuance of Equity Securities of the Company on or after the date of this Agreement to the extent permitted by Section 5.1 (as qualified by or permitted under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, Disclosure Schedule) and outstanding Company RSU Awards Section 7.5 (with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither an offering period in existence under the Company nor any of its Subsidiaries has issued any shares of its capital stockESPP), has granted any optionsthere are no issued, restricted stock, stock appreciation rights, warrants reserved for issuance or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All outstanding Equity Securities of the Company.
(ii) All outstanding Company Shares have been, and all shares of Company Common Stock Shares that may be issued pursuant to the exercise of outstanding any Company Stock Awards Share Plan, any employee stock option or vesting of Company RSU Awards other compensation plan or arrangement will be (be, when issued in accordance with the respective terms thereof), duly authorized and validly issued and are issued, fully paid and nonassessable and are free of preemptive rightsrights and Liens other than Permitted Liens. Section 4.2(a) No Subsidiary of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, owns any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock Equity Securities of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no outstanding bonds, debentures, notes or other indebtedness Indebtedness of the Company having voting rights the right to vote (or convertible into into, or exchangeable for, securities having such rightsthe right to vote) with respect to the Company or on any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to matters on which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities shareholders of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary right to vote. As of the Companydate of this Agreement, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from Shares underlying the Company RSU Awards or any of its SubsidiariesCompany PSU Awards, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There there are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries Equity Securities of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rightsor its Subsidiaries. Except for Subsidiary Securities, neither Neither the Company nor any of its Subsidiaries owns directly or indirectly is a party to any equity interests agreement with respect to the voting of any Equity Securities of the Company.
(iii) Each Company Option (A) was granted in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in compliance with all applicable Laws and all of the form of a loan, capital contribution or otherwise) in any Subsidiary terms and conditions of the Company Share Plan pursuant to which it was issued, (B) has an exercise price per Company Share equal to or any other Person. There are not outstanding obligations greater than the fair market value of a Company Share on the date of such grant, (C) has a grant date identical to the date on which the Company Board or the compensation committee thereof actually awarded such Company Option and (D) does not trigger any liability for the holder thereof under Section 409A of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesCode.
Appears in 3 contracts
Sources: Transaction Agreement, Transaction Agreement (Amgen Inc), Transaction Agreement (Horizon Therapeutics Public LTD Co)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares 130,000,000 Company Shares. As of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26November 29, 20162010, (i) 28,746,664 shares of 48,014,947 Company Common Stock Shares were issued and outstanding; , (ii) no shares Company Shares were held in the treasury of Company Preferred Stock were issued and outstanding; the Company, (iii) 4,826,402 no Company Shares were held by any Subsidiaries of the Company in its treasury; and (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding such number of Company Options to purchase 2,576,792 shares Company Shares as is set forth on Section 4.03 of the Disclosure Schedule. The Company Common Stockhas not issued any Company Shares or Company Options to purchase Company Shares from and including November 29, 2010 to and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until including the date hereof, neither other than the issuance of Company nor any Shares pursuant to the exercise of its Subsidiaries has issued any shares Company Options. As of its capital stockthe date hereof, has granted any options, restricted stock, stock appreciation rights, no warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its purchase shares of capital stockstock of the Company are outstanding. All of the outstanding Company Shares and shares of capital stock (or, where applicable, other comparable equity interests) of each Subsidiary of the Company have been, and all shares of capital stock of the Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards Equity Compensation Plan will be (be, when issued in accordance with the respective terms thereof), duly authorized and authorized, validly issued and are issued, fully paid and nonassessable and are free of preemptive rightsnonassessable. Section 4.2(a4.03(a) of the Company Disclosure Letter contains a true, correct and complete listSchedule sets forth the authorized and, as of the date hereofNovember 26, of all Company Stock Awards2010, indicating as 2010, issued and outstanding capital stock (or, where applicable, with respect to other comparable equity interests) of each Company Stock Award then outstanding, Subsidiary of the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereofCompany. Except for the Company Stock Awards, there are on the date hereof no outstanding (Aas set forth in Section 4.03(a) securities of the Company convertible into or exchangeable for Disclosure Schedule, all outstanding shares of capital stock or voting securities or ownership comparable equity interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations Subsidiaries of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations are owned by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (all Liens other than Permitted Liens)transfer restrictions pursuant to the federal securities Laws and any similar state or foreign securities Laws.
(b) Except as set forth in Section 4.03(a) above, and there are no proxies with respect to any such shares. There are no outstanding (i) shares of capital stock or voting securities of the Company or any of its Subsidiaries, (ii) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the CompanyCompany or any of its Subsidiaries, (iiiii) options, restricted stock, warrants, rights options or other agreements or commitments rights to acquire from the Company or any of its Subsidiaries, Subsidiaries or other obligations (including obligations arising out of preemptive rights or other similar rights) of the Company or any of its Subsidiaries to issue, issue any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the CompanyCompany or any of its Subsidiaries, or (iiiiv) contractual obligations that would otherwise entitle any other Person to share in the equity, profits, earnings, losses or gains of the Company or any of its Subsidiaries to grant(including stock appreciation, extend or enter into any subscriptionphantom stock, warrant, right, convertible or exchangeable security profit participation or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in any Subsidiary of the Company rights). No depositary receipts (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securitiescertificaten”) or have been issued for any Company Shares.
(ivc) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There Except as set forth in Section 4.03(a) above, there are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or redeem, otherwise acquire or make any outstanding Subsidiary Securities. All payment (including any dividend or distribution) in respect of the outstanding any (i) shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary voting securities of the Company or any other Person. There are not outstanding obligations to which of its Subsidiaries, (ii) securities of the Company or any of its Subsidiaries is a party restricting convertible into or exchangeable for shares of capital stock or voting securities of the transfer ofCompany or any of its Subsidiaries, or limiting (iii) options or other rights to acquire from the exercise Company or any of its Subsidiaries, or other obligations of the Company or any of its Subsidiaries, to issue any capital stock, voting rights securities or securities convertible into or exchangeable for capital stock or voting securities of the Company or any of its Subsidiaries. To the knowledge of the Company, there are no Liens on, or other contractual obligations relating to, the ownership, transfer or voting of any Company Shares or any shares of capital stock (or, where applicable, other comparable equity interests) of each Subsidiary of the Company.
(d) Each Company Option was granted in compliance with all applicable Laws and all of the terms and conditions of the Company Equity Compensation Plan and at all relevant times has qualified for exemption from Section 409A of the Code under Section 1.409A-1(b)(5)(i)(A) or Section 1.409A-1(b)(5)(ii) of the regulations thereunder.
(e) As of the date hereof, the Company had outstanding indebtedness for borrowed money (including the aggregate principal amount thereof, the aggregate amount of any accrued but unpaid interest thereon and penalties, fees, and premiums with respect tothereto), any Subsidiaries Securitieswhether secured or unsecured, in an amount as set forth in Section 4.03(e) of the Disclosure Schedules.
Appears in 3 contracts
Sources: Share Purchase Agreement (Aptalis Holdings Inc.), Share Purchase Agreement (Eurand N.V.), Share Purchase Agreement (Axcan Intermediate Holdings Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 100,000,000 shares of Company Common Stock and 10,000,000 3,030,303 shares of preferred stock (the “Company Preferred Stock,” and together with the Company Common Stock, the “Company Stock”). At Immediately prior to the close Closing Date, and without giving effect to the transactions contemplated by this Agreement or any of business on July 26the other agreements contemplated hereby (collectively, 2016the “Transaction Documentation”), (i) 28,746,664 71,650,622 shares of Company Common Stock were are issued and outstanding; (ii) , and no shares of Company Preferred Stock were are issued or outstanding (the holder of all 3,030,303 share of Series A Preferred Stock outstanding as of December 31, 2022 has agreed that all such shares will convert into an equivalent number of shares of Company Common Stock in connection with the Closing and thus no such shares are issued and outstanding; (iii) 4,826,402 Company Shares were held by outstanding as of immediately prior to the Company in its treasury; (iv) an aggregate of 4,390,772 Closing Date). No other shares of Company Stock were reserved for issuance pursuant to outstanding awards are issued or outstanding, and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 no shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 Stock or shares of Company Preferred Stock are held in the treasury of the Company. Immediately prior to the Closing Date, there are and will be outstanding options to purchase shares of Company Common Stock as set forth on Section 2.2 of the Company Disclosure Schedule (“Company Options”). Immediately prior to the Closing Date, there are and will be outstanding, no warrants to purchase shares of Company Common Stock as set forth on Section 2.2 of the Company Disclosure Schedule (“Company Warrants”). Section 2.2 of the Company Disclosure Schedule sets forth a complete and accurate list of (i) all stockholders of the Company, indicating the number and class of Company Stock held by each stockholder, (ii) all stock option plans and other stock or equity-related plans of the Company (“Company Equity Plans”) and the number of shares of Company Common Stock remaining available for future awards thereunder, (iii) all outstanding Company Options and Company Warrants, indicating (A) the holder thereof, (B) the number of shares of Company Common Stock subject to each Company Option and Company Warrant, (C) the Company Equity Plan under which each Company Option was issued, (D) the exercise price, date of grant, vesting schedule and expiration date for each Company Option or Company Warrant, and (E) any terms regarding the acceleration of vesting, and (iv) all outstanding debt convertible into Company Stock. From such date until , indicating (A) the date hereofof issue, neither (B) the holder thereof, (C) the unpaid principal amount thereof, (D) the interest rate thereon, (E) the accrued and unpaid interest thereon, (F) the number and class of Company nor any of its Subsidiaries has issued any shares of its capital stockStock into which such debt is convertible, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stockand (G) the conversion price thereof. All of the issued and outstanding shares of Company Shares have beenCommon Stock and Company Preferred Stock are, and all shares of Company Common Stock that may be issued pursuant to the upon exercise of outstanding Company Stock Awards Options or vesting Company Warrants or conversion of Company RSU Awards convertible debt will be (when upon issuance in accordance with their terms), duly authorized, validly issued, fully paid, nonassessable and, effective as of the Effective Time, free of all preemptive rights, and have been or will be issued in accordance with applicable laws, including but not limited to, the terms thereof), duly authorized Securities Act. Other than the Company Options and validly issued Company Warrants and are fully paid and nonassessable and are free of preemptive rights. convertible debt listed in Section 4.2(a) 2.2 of the Company Disclosure Letter contains Schedule, there are no outstanding or authorized options, warrants, securities, rights, agreements or commitments to which the Company is a trueparty or which are binding upon the Company providing for the issuance or redemption of any of Company Stock or pursuant to which any outstanding Company Stock is subject to vesting. There are no outstanding or authorized stock appreciation, correct and complete list, phantom stock or similar rights with respect to the Company. Other than as listed in Section 2.2 of the date hereofCompany Disclosure Schedule, immediately prior to the Closing Date there are no agreements to which the Company is a party or by which it is bound with respect to the voting (including without limitation voting trusts or proxies), registration under the Securities Act, or sale or transfer (including without limitation agreements relating to pre-emptive rights, rights of all first refusal, co-sale rights or “drag-along” rights) of any securities of the Company. To the knowledge of the Company, immediately prior to the Closing Date there are no agreements among other parties, to which the Company Stock Awards, indicating as applicableis not a party and by which it is not bound, with respect to each Company Stock Award then outstandingthe voting (including without limitation voting trusts or proxies) or sale or transfer (including without limitation agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any securities of the type Company. All of Company Stock Award granted, the number of issued and outstanding shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and were issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 3 contracts
Sources: Share Exchange Agreement (Neonc Technologies Holdings, Inc.), Share Exchange Agreement (Neonc Technologies Holdings, Inc.), Share Exchange Agreement (Neonc Technologies Holdings, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares of 100,000,000 Company Common Stock Shares and 10,000,000 1,000,000 shares of Company Preferred Stock. At As of the close of business on July 26October 28, 20162022 (the “Capitalization Date”), (i) 28,746,664 shares of 45,097,340 Company Common Stock Shares were issued and outstanding; , (ii) no shares of Company Preferred Stock were issued and outstanding; outstanding and (iii) 4,826,402 3,327,821 Company Shares were held by the Company in its treasury; (iv) an aggregate . From the Capitalization Date to the execution of 4,390,772 shares of this Agreement, the Company Stock were reserved for issuance has not issued any Company Shares except pursuant to outstanding awards and the exercise of the purchase rights under the Company Stock Plans and (v) under ESPP, the Company Stock Plans, there were outstanding exercise of Company Options to purchase 2,576,792 shares or the settlement of Company Common Stock, and outstanding Company RSU Awards or Company PSU Awards outstanding as of the Capitalization Date in accordance with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stocktheir terms. All of the outstanding Company Shares Shares, (i) have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), been duly authorized and validly issued and issued, (ii) are fully paid and nonassessable and (iii) are free of any preemptive rightsrights or any similar right created by applicable Law, the organizational documents of the Company or any agreement to which the Company is a party or otherwise bound.
(b) As of the close of business on the Capitalization Date, (i) 576,703 Company Shares were subject to issuance pursuant to Company Options granted and outstanding under the Company Stock Plan, (ii) 268,298 Company Shares were subject to issuance pursuant to Company RSU Awards granted and outstanding under the Company Stock Plan, (iii) 232,608 and 348,036 Company Shares were subject to issuance pursuant to Company PSU Awards granted and outstanding under the Company Stock Plan (assuming each of target and maximum achievement of all performance goals), (iv) 2,562,504 Company Shares were reserved for future issuance under the Company Stock Plan and (v) 4,631 Company Shares could be acquired with accumulated payroll deductions under the Company ESPP (assuming that the market price of a Company Share is equal to the Offer Price). Section 4.2(a4.2(b) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all the name of each holder of Company Stock Equity Awards, indicating as the number of Company Shares subject to each outstanding Company Equity Award (assuming, if applicable, the target and maximum achievement of all performance goals) held by such holder, the grant or issuance date of each such Company Equity Award, the exercise price, whether each Company Option is intended to be an “incentive stock option” (as defined in Section 422 of the Code) and the expiration date of each Company Option (the “Company Equity Award Schedule”). The Company shall provide Parent with an updated Company Equity Award Schedule within three (3) Business Days prior to the anticipated Closing to reflect any changes occurring between the Capitalization Date and the applicable date of delivery. With respect to each Company Stock Award then outstandingOption, the type per share exercise price was equal to the fair market value (within the meaning of Section 409A of the Code) of a Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, Share on the date of grant, exercise or purchase price grant and expiration thereofeach Company Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies. Each Company Equity Award and the Company ESPP may by its terms be treated at the Effective Time as set forth in Section 3.7.
(c) Except for the Company Stock AwardsEquity Awards set forth in Section 4.2(b) above, there are on the date hereof no outstanding (Ai) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (Bii) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (in, or securities convertible into or exchangeable for or with a value that is linked to (including any “phantom” stock, “phantom” stock rights, stock appreciation rights, stock-based units or any other similar interests), capital stock or voting securities or other ownership interests in) in the Company (or, in each case, the economic equivalent thereof), (Ciii) obligations of requiring 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, voting securities or other ownership interests in the Company (the items in clauses (Ai), (Bii) and (Ciii), together with the shares of capital stock of the Company, being referred to collectively as “Company Securities”) or (Div) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. Shares.
(d) There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such SubsidiaryCompany. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities lawsLaws, including the Securities Act and “blue sky” lawsLaws.
(be) The Company or another of its Subsidiaries is the record and beneficial owner of all of the issued and outstanding shares of capital stock of of, or other equity or voting interests in, each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), which shares (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and (iii) are free of any preemptive rights or any similar right created by applicable Law, the organizational documents of any applicable Subsidiary or any agreement to which the Company or any Subsidiary is a party or otherwise bound, and there are no irrevocable proxies with respect to any such shares. There are no outstanding (i) securities As of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any date hereof, with respect to each Subsidiary of the Company, (ii) there are no securities, options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiariesobligations, or obligations in each case, of the Company or any of its Subsidiaries to issuetype described in clauses (i), any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests inii) any Subsidiary of the Company, and (iii) obligations of the definition of Company or any of its Subsidiaries to grantSecurities, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating with respect to any capital stock, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Company, the “Subsidiary Securities, neither ”).
(f) Neither the Company nor any of its Subsidiaries owns directly has outstanding bonds, debentures, notes or indirectly other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the Company Stockholders on any matter.
(g) No Company Shares (or other equity interests in or ownership interests, including any Person, security or has any obligation to acquire other Contract convertible into or exchangeable for any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwiseownership interest) in are held by any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesCompany.
Appears in 3 contracts
Sources: Merger Agreement (Johnson & Johnson), Merger Agreement (Abiomed Inc), Merger Agreement (Johnson & Johnson)
Capitalization. (a) The authorized registered (authorized) share capital stock of the Company consists of 200,000,000 shares NIS 18,000,000 divided into 90,000,000 Company Shares, nominal value NIS 0.20 per share. As of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26January 24, 2016, 2020 (the “Company Capitalization Date”): (i) 28,746,664 shares of (A) 55,493,258 Company Common Stock Shares were issued and outstanding; , (iiB) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; treasury (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans dormant shares), and (vC) under no Company Shares were held by Subsidiaries of the Company; and (ii) 3,168,979 Company Stock Plans, there Shares were subject to outstanding Company Options to purchase 2,576,792 shares (assuming, in the case of Company Common StockOptions that are subject to the attainment of performance goals, that applicable performance goals are attained at maximum levels). Since the Company Capitalization Date and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has not issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued other than pursuant to the exercise of Company Options.
(b) Section 3.4(b) of the Company Disclosure Letter sets forth, as of the Company Capitalization Date, with respect to any Company Options outstanding as of such date: (i) the number of Company Shares subject to each Company Option; (ii) the name and state of residence of the holder of each Company Option; (iii) the grant date and expiration date of each Company Option; (iv) the exercise price for each Company Option; (v) the vesting schedule; (vi) a description of any vesting acceleration provisions applicable to such Company Option; (vii) the Company Plan under which such Company Option was granted; (viii) the Tax route under which such Company Option was granted and is currently intended to qualify; and (ix) for Company 102 Options, the date of deposit of such award with the 102 Trustee, as well as the date of deposit of the applicable corporate approval and the date of deposit of the respective award agreement with the 102 Trustee (in the case of clauses (i) through (ix) on an award-by-award basis). No outstanding Company Stock Awards Options were granted outside of the Company Plans and there are no outstanding Company Restricted Shares. As of the Company Capitalization Date, 77,888 Company Shares were reserved for future issuance pursuant to equity-based awards not yet granted under the Company Plans and, since such date, the Company has not granted, committed to grant or vesting otherwise created or assumed any obligation with respect to any Company Options, except as set forth in Section 3.4(b) of the Company RSU Awards will be Disclosure Letter or as permitted by Section 5.2(b).
(when issued in accordance with the terms thereof), c) All outstanding Company Shares have been duly authorized and validly issued in compliance in all material respects with all Applicable Law, and are fully paid and nonassessable and are free of any preemptive rights. All Company Options have been duly authorized and validly issued in compliance in all material respects with all Applicable Law and the Company Plans and all Company Options have been properly accounted for in accordance with U.S. GAAP on the consolidated audited financial statements of the Company and its Subsidiaries filed in or furnished with the Company SEC Reports.
(d) Except (1) as set forth in Section 4.2(a3.4(d) of the Company Disclosure Letter, and (2) changes since the Company Capitalization Date resulting from the issuance of Company Shares pursuant to the Company Options set forth in Section 3.4(b) of the Company Disclosure Letter contains a true, correct and complete list, or as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awardsexpressly permitted by Section 5.2, there are on the date hereof (i) other than as set forth in Section 3.4(a), no outstanding shares of, or other equity or voting interest in, the Company; (Aii) no outstanding securities of the Company convertible into or exchangeable for shares of share capital stock of, or other equity or voting securities or ownership interests in interest in, the Company; (iii) no outstanding options, (B) optionsstock appreciation rights, warrants, calls, pre-emptive rights, subscriptionsrestricted share units, rights or other commitments or agreements or commitments requiring to acquire from the Company to issueCompany, or other obligations of that obligate the Company to issue, any share capital stockof, voting securities or other ownership interests in (equity or voting interest in, or any securities convertible into or exchangeable for share capital stock of, or other equity or voting securities or other ownership interests interest in) the Company (or, in each case, the economic equivalent thereof), Company; (Civ) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment (whether payable in equity, cash or otherwise) relating to any share capital stockof, voting securities or other ownership interests in equity or voting interest (including any voting debt) in, the Company (the items in clauses (Ai), (Bii), (iii) and (Civ), together with the share capital stock of the Company, being referred to collectively as “Company Securities”) or and (Dv) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common StockSecurities. There are on the date hereof no outstanding obligations Contracts of any kind, which obligate the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes Except for the Voting Agreement and the Charter Documents or other indebtedness having voting rights (or convertible into securities having such rightsas set forth in Section 3.4(d) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary SecuritiesDisclosure Letter, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party to any Contracts restricting the transfer of, relating to the voting of, requiring registration of, or limiting the exercise granting any preemptive rights, anti-dilutive rights or rights of voting first refusal or similar rights with respect to, to any Subsidiaries Securitiessecurities of the Company.
Appears in 3 contracts
Sources: Merger Agreement (Gilat Satellite Networks LTD), Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Gilat Satellite Networks LTD)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares (i) 750,000,000 Shares, of Company Common Stock and 10,000,000 shares which, as of Company Preferred Stock. At the close of business on July 26August 20, 20162015 (the “Measurement Date”), 120,071,870 Shares were issued and outstanding (including Company Restricted Shares), (iii) 28,746,664 10,000,000 shares of Company Common Stock preferred stock, no par value, of which, as of the Measurement Date, no shares were issued and outstanding; , and (iiiii) no 10,000,000 shares of Company Preferred Stock Class A junior participating preferred stock, no par value, of which, as of the Measurement Date, no shares were issued and outstanding; outstanding (iii) 4,826,402 collectively, the “Company Capital Stock”). As of the Measurement Date, 216,523 Shares were held by in the Company in its Company’s treasury; (iv) an aggregate . As of 4,390,772 shares of Company Stock the Measurement Date, 3,661,996 Shares were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) Omnibus Performance Incentive Plan, no Shares were reserved for issuance under the Company Stock PlansLong-Term Incentive Plan, there 363,675 Shares were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither reserved for issuance under the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stockESPP and 2,031,307 Shares were reserved for issuance under the Company DRIP. All of the issued and outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights. Section 4.2(a.
(b) of the The Company Disclosure Letter contains a true, correct has provided Parent with an accurate and complete list, as list of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, outstanding as of the type of Measurement Date pursuant to the Company Equity Incentive Plans. All outstanding Company Stock Award grantedAwards were granted under a Company Equity Incentive Plan and are evidenced by award agreements, in each case in all material respects in the number of shares of forms made available by the Company Common Stock subject to Parent, and no award agreement contains terms that are inconsistent with or in addition to such Company Stock Award, forms in any material respect. From the Measurement Date until the date of grantthis Agreement, exercise or purchase price and expiration thereof. Except for the Company has not issued any Shares or Company Stock Awards, there are on the date hereof no outstanding (A) Awards or other equity securities of the Company convertible into or exchangeable for shares any securities representing the right to purchase or otherwise receive any Shares (other than in connection with (i) the exercise or settlement of capital stock Company Stock Awards or voting securities ESPP Purchase Rights granted prior to the Measurement Date or ownership interests (ii) the issuance of Shares under the Company DRIP).
(c) Except pursuant to this Agreement, the Company Equity Incentive Plans, the Company ESPP, the Company DRIP or as set forth in this Section 3.2, the CompanyCompany does not have and is not bound by any outstanding subscriptions, (B) options, warrants, calls, pre-emptive rightscommitments or agreements of any character calling for the purchase, subscriptions, rights issuance or other agreements or commitments requiring the Company to issue, or other obligations registration of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company Shares or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations other equity securities of the Company or any of its Subsidiaries securities representing the right to purchase, redeem purchase or otherwise acquire receive any Company Securities. Shares.
(d) There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect the right to the Company or vote on any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to matters on which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock shareholders of the Company may vote that are issued or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities as of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsdate of this Agreement.
(be) The Company or another All of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock or other equity ownership interests of each Company Subsidiary of that are owned by the Company, directly or indirectly, are owned free and clear of any Lien Liens (other than Permitted Lienstransfer restrictions under applicable federal and state securities Laws), and there are no proxies with respect to any all of such shares. There are no outstanding (i) securities of the Company shares or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or equity ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights. Except No Company Subsidiary has or is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for Subsidiary Securities, neither the Company nor purchase or issuance of any shares of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company stock or any other Personequity security of such Company Subsidiary or any securities representing the right to purchase or otherwise receive any shares of capital stock or any other equity security of such Company Subsidiary. There are not no outstanding obligations (other than those under applicable securities Laws) to which the Company or any of its Subsidiaries Company Subsidiary is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesEquity Interest in any Company Subsidiary.
Appears in 3 contracts
Sources: Merger Agreement (Southern Co), Merger Agreement (Agl Resources Inc), Merger Agreement
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (i) 50,000,000 Shares and (ii) 1,000,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock. ”), of which 50,000 have been designated by the Company Board as Series B Junior Participating Preferred Stock and are issuable upon exercise of the Rights under the Rights Agreement.
(b) At the close of business on July 26January 8, 2016, 2010: (i) 28,746,664 shares of Company Common Stock 2,838,683 Shares were issued and outstanding; , (ii) 2,028,297 Shares were held in treasury, (iii) 53,000 Shares were reserved for issuance under the Amended and Restated K-Tron International, Inc. 1996 Equity Compensation Plan, as amended, (iv) 182,500 Shares were reserved for issuance under the K-Tron International, Inc. 2006 Equity Compensation Plan, as amended on May 11, 2007 and (v) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by . Except as set forth above, as of January 8, 2010, no Securities of the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were issued, reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, or outstanding. All issued and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock Shares that may be issued pursuant to (x) the exercise of outstanding Company Stock Awards Options or vesting of Company RSU Awards SARs and (y) Company RSUs will be (be, when issued in accordance with the respective terms thereof), duly authorized and authorized, validly issued and are issued, fully paid and nonassessable and are free of subject to no preemptive or similar rights. The Company has never declared or paid any dividend or distribution in respect of the Shares, and since October 3, 2009 has not repurchased, redeemed or otherwise acquired any Shares or issued any Company Stock Options, Company SARs, Company RSUs or Unvested Restricted Stock. There are no accrued and unpaid dividends or other distributions with respect to any outstanding Shares, and no Company Subsidiary owns, holds or has any interest in any Shares.
(c) Section 4.2(a3.3(c) of the Company Disclosure Letter contains a true, correct and complete list, sets forth each Company Equity Plan for which awards remain in effect as of the date hereof, . The Company has made available to Parent accurate and complete copies of all stock equity plans pursuant to which the Company has granted Company Stock AwardsOptions, indicating as applicableCompany SARs, Company RSUs and Unvested Restricted Stock and the forms of all award agreements evidencing such Company Stock Options, Company SARs, Company RSUs and Unvested Restricted Stock. No material changes have been made to such forms in connection with any award. There are no outstanding options to purchase Shares, restricted Shares or restricted stock units or other equity-based awards associated with Shares that were issued other than pursuant to any Company Equity Plan and set forth in Section 3.3(d), (e), (f) and (g) of the Company Disclosure Letter.
(d) As of the date hereof, 53,000 Shares are subject to issuance pursuant to Company Stock Options granted and outstanding under the Company Equity Plans and no Shares are subject to issuance pursuant to Company SARs granted and outstanding under the Company Equity Plans. Section 3.3(d) of the Company Disclosure Letter sets forth the following information with respect to each Company Stock Award then outstanding, Option and each Company SAR outstanding as of the type date of this Agreement: (i) the Company Equity Plan pursuant to which such Company Stock Award Option or Company SAR was granted, ; (ii) the name of the holder of such Company Stock Option or Company SAR; (iii) the number of shares of Company Common Stock Shares or rights subject to such Company Stock Award, Option or Company SAR; (iv) the exercise price of such Company Stock Option or Company SAR; (v) the date on which such Company Stock Option or Company SAR was granted; (vi) the extent to which such Company Stock Option or Company SAR is vested and exercisable as of the date of grantthis Agreement and the times and extent to which such Company Stock Option or Company SAR is scheduled to become vested and exercisable after the date of this Agreement, exercise including any events that would result in any acceleration of such vesting or purchase price and expiration thereof. Except for exercisability; (vii) whether the Company Stock AwardsOption is an incentive stock option or a nonqualified stock option and (viii) the date on which such Company Stock Option or Company SAR expires. Except as set forth in Section 3.3(d) of the Company Disclosure Letter, the exercise price of each Company Stock Option and each Company SAR is, and will be deemed to be, equal to or greater than the fair market value of the Shares subject to or underlying such Company Stock Option or Company SAR as of the date such Company Stock Option or Company SAR was granted and each Company Stock Option and Company SAR qualifies for exemption from Section 409A of the Code.
(e) As of the date hereof, 11,550 Shares are subject to issuance pursuant to Company RSUs granted and outstanding under the Company Equity Plans. Section 3.3(e) of the Company Disclosure Letter sets forth the following information with respect to each Company RSU outstanding as of the date of this Agreement: (i) the Company Equity Plan pursuant to which such Company RSU was granted; (ii) the name of the holder of such Company RSU; (iii) the number of Shares subject to such Company RSU; (iv) the date on which such Company RSU was granted; and (v) the extent to which such Company RSU is vested as of the date of this Agreement and the times and extent to which such Company RSU is scheduled to become vested after the date of this Agreement, including any events that would result in any acceleration of such vesting or exercisability.
(f) As of the date hereof, there are on 25,000 Shares that constitute Unvested Restricted Stock, which are reflected in the Shares listed in Section 3.3(b)(i). Section 3.3(f) of the Company Disclosure Letter sets forth the following information with respect to each share of Unvested Restricted Stock outstanding as of the date hereof no of this Agreement: (i) the Company Equity Plan pursuant to which such Unvested Restricted Stock was granted; (ii) the name of the holder of such Unvested Restricted Stock; (iii) the number of Shares subject to the terms of such Unvested Restricted Stock; (iv) the date on which such Unvested Restricted Stock was granted; and (v) the dates on which such Unvested Restricted Stock is scheduled to vest, including any events that would result in any acceleration of such vesting or exercisability.
(g) Except as referred to in Section 3.3(d) and Section 3.3(e) above, and except as set forth in Section 3.3(g) of the Company Disclosure Letter, as of the date of this Agreement, (i) there are not outstanding or authorized (A) securities any Securities of the Company or any Company Subsidiary convertible into or exchangeable for shares Securities of capital stock the Company or voting securities any Company Subsidiary or ownership interests in the Company, (B) options, calls, warrants, calls, pre-emptive preemptive rights, subscriptions, anti-dilution rights or other agreements rights, rights agreements, shareholder rights plans, agreements, arrangements or commitments requiring of any character relating to the Company to issue, issued or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (unissued Securities or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) obligations Securities 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There Subsidiary, (ii) there are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries Company Subsidiary to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes Securities or other indebtedness having voting rights (or securities convertible into securities having such rights) with respect to or exchangeable for Securities of the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide a material amount of funds to (excluding the payment of intercompany obligations), or make any material investment (in the form of a loan, capital contribution or otherwise) in in, any Company Subsidiary or other Person, (iii) neither the Company nor any Company Subsidiary has issued phantom stock or any other contractual rights the value of its Subsidiaries which is determined in exchange for ownership of Common Stock whole or any other equity interest in part by the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear value of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities Securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital Company Subsidiary and there are no outstanding stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, appreciation rights or other agreements or commitments to acquire from issued by the Company or any of its Subsidiaries, or obligations Company Subsidiary with respect to the Securities of the Company or any of its Subsidiaries to issueCompany Subsidiary, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of except for the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There Voting Agreement, there are no outstanding obligations of the Company voting trusts or any of its Subsidiaries to purchase, redeem other agreements or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations understandings to which the Company or any Company Subsidiary or, to the knowledge of its Subsidiaries the Company, any of their respective officers and directors, is a party restricting with respect to the transfer ofvoting of Securities of the Company or any Company Subsidiary, and (v) there are no outstanding bonds, debentures, notes or other Indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or limiting exchangeable for, Securities having the exercise right to vote) on any matter on which the shareholders or other equity holders of voting the Company or any Company Subsidiary may vote. There are no preemptive or similar rights on the part of any holder of any class of Securities of the Company or any Company Subsidiary. Each Company Stock Option, Company SAR, Company RSU and Share of Unvested Restricted Stock (and each other Company equity grant) was properly accounted for in all material respects in accordance with GAAP or other applicable accounting procedures or requirements and properly and timely disclosed in accordance with the Exchange Act and all other applicable Laws and no such grants involved any “back dating,” “forward dating” or similar practices with respect to, any Subsidiaries Securitiesto such grants.
Appears in 3 contracts
Sources: Rights Agreement (K Tron International Inc), Merger Agreement (K Tron International Inc), Merger Agreement (Hillenbrand, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 150,000,000 shares of Company Common Stock and 10,000,000 2,000,000 shares of preferred stock, par value $.01 per share, consisting of 250,000 shares of Series A Convertible Preferred Stock, 100,000 shares of Series B Convertible Preferred Stock and 1,650,000 shares of undesignated preferred stock. As of December 31, 2005 (the "CAPITALIZATION DATE") (i) 49,581,917 shares of Company Preferred Stock. At the close of business on July 26, 2016Common Stock (which includes outstanding Restricted Stock Awards) were issued and outstanding, (iii) 28,746,664 Company Stock Options to acquire 710,102 shares of Company Common Stock were issued and outstanding; , (iiiii) no shares of Company Preferred Common Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by in the Company in its treasury; treasury of the Company, (iv) an aggregate of 4,390,772 5,500,000 shares of Company Common Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans Warrant, and (v) under no shares of the Company Company's Series A Convertible Preferred Stock Plansand 20,063 shares of the Company's Series B Convertible Preferred Stock, there were outstanding Company Options to purchase 2,576,792 which are convertible into approximately 3,039,745 shares of Company Common Stock, were issued and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stockoutstanding. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued and the Company's Series B Convertible Preferred Stock outstanding on the date of this Agreement are duly authorized, validly issued, fully paid and nonassessable. Since the Capitalization Date through the date of this Agreement, other than (A) in connection with the issuance of Common Shares pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued Options and Warrants, and Restricted Stock Awards, as set forth in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) 3.03 of the Company Disclosure Letter contains a trueSchedule, correct and complete list(B) in connection with the surrender to the Company of shares issued upon the "net exercise" of such Company Stock Options or Warrants and shares surrendered to the Company in connection with the payment of withholding Tax upon the vesting of such Restricted Stock Awards, and (C) the grant on March 31, 2006 of 450,000 shares of Company Common Stock pursuant to Restricted Stock Awards, there has been no change in the number of Shares of outstanding or reserved capital stock of the Company or the number of outstanding Company Stock Options, Warrant or Restricted Stock Awards.
(b) Section 3.03 of the Company Disclosure Schedule describes (i) all outstanding Company Stock Options and other rights to purchase or receive shares of Company Common Stock under the Company Equity Plans, as of the Capitalization Date, together with the expiration date, exercise price and number of shares subject thereto, (ii) the Warrant, together with the expiration date, exercise or strike price and number of shares subject thereto, (iii) the number of outstanding unvested shares constituting Restricted Stock Awards for Company Common Stock, as of the Capitalization Date, and (iv) the number of Restricted Stock Awards for Company Common Stock that, as of the date hereofof this Agreement, have been approved by the Company Board, but have not yet been issued.
(c) Except as set forth in Section 3.03 of all the Company Stock AwardsDisclosure Schedule, indicating as applicablethere are no (i) subscriptions, with respect calls, contracts, options, warrants or other rights, agreements, arrangements, understandings, restrictions or commitments of any character to each which the Company Stock Award then outstandingor any Subsidiary is a party or by which the Company or any Subsidiary is bound relating to the issued or unissued capital stock or equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, other equity interests in or debt securities of, the type Company or any Subsidiary, (ii) securities of the Company Stock Award grantedor securities convertible, exchangeable or exercisable for shares of capital stock or equity interests of the number of Company or any Subsidiary, or (iii) equity equivalents, stock appreciation rights or phantom stock, ownership interests in the Company or any Subsidiary or similar rights. All shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock AwardsOptions and Warrant set forth in Section 3.03 are duly authorized and, there are upon issuance on the date hereof terms and conditions specified in the instruments pursuant to which they are issuable, will be validly issued, fully paid and nonassessable and free of preemptive (or similar) rights. There are no outstanding (A) securities contractual obligations or rights of the Company convertible into or exchangeable for any Subsidiary to repurchase, redeem (other than the redemption rights of the Company Preferred Stock) or otherwise acquire any securities or equity interests of the Company or any Subsidiary or to vote or to dispose of any shares of capital stock or voting securities or ownership equity interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any Subsidiary except pursuant to the terms of its Subsidiaries Restricted Stock Awards. Except as set forth in Section 3.03 of the Company Disclosure Schedule, none of the Company or any Subsidiary is a party to make any payments based stockholders' agreement, voting trust agreement or registration rights agreement relating to any equity securities or equity interests of the Company or any Subsidiary or any other Contract relating to disposition, voting or dividends with respect to any equity securities or equity interests of the Company or of any Subsidiary. No dividends on the price Company Common Stock have been declared or value paid from December 31, 2005 through the date of this Agreement. All of the shares of Shares have been issued by the Company Common Stockin compliance with applicable federal securities Law. There are on the date hereof no outstanding obligations bonds, debentures, notes or other Indebtedness of the Company or any of its Subsidiaries having the right to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights vote (or convertible into into, or exchangeable for, securities having the right to vote) on any matter for which the Company's stockholders may vote.
(d) Each outstanding share of capital stock (or other unit of equity interest) of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable (where such concepts are legally applicable) and was issued free of preemptive (or similar) rights, and, except as set forth in Section 3.01 of the Company Disclosure Schedule, each such share or unit (other than directors' qualifying shares in the case of non-United States Subsidiaries) with respect is owned by the Company, by one or more wholly-owned Subsidiaries, or by the Company and one or more wholly-owned Subsidiaries, free and clear of all options, rights of first refusal, agreements, limitations on the Company's or any Subsidiary's voting, dividend or transfer rights, charges and other encumbrances or Liens of any nature whatsoever.
(e) Section 3.03 of the Company Disclosure Schedule also lists any and all Persons of which the Company directly or indirectly owns an equity or similar interest, or an interest convertible into or exchangeable or exercisable for an equity or similar interest, of, to the Company's knowledge, greater than 5% but less than 50% (collectively, the "INVESTMENTS"). Except as set forth in Section 3.03 of the Company Disclosure Schedule, the Company or a Subsidiary, as the case may be, owns all Investments free and clear of all Liens, and there are no outstanding contractual obligations of the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts permitting the repurchase, redemption or other agreements acquisition of any of its interest in the Investments or understandings to which requiring the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations Subsidiary to provide funds to or to, make any investment (in the form of a loan, capital contribution or otherwise) in in, provide any guarantee with respect to, or assume, endorse or otherwise become responsible for the obligations of, any Investment.
(f) The General Partner is a single member Delaware limited liability company, and the sole member of the General Partner is a wholly-owned Subsidiary of the Company.
(g) As of the Capitalization Date (i) 3,972,500 Common Units were issued and outstanding, of which 2,500 were owned of record and beneficially by the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options3,322,266 Subordinated Units were issued and outstanding, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations which 2,872,266 were owned of record and beneficially by Subsidiaries of the Company or any of its Subsidiaries and 450,000 were owned, to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company's knowledge, by an Affiliate of Parent, (iii) obligations all of the Company or any of its Subsidiaries to grantGeneral Partner Interests, extend or enter into any subscriptionwhich include all Incentive Distribution Rights, warrantare owned by the General Partner, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company no Common Units or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any PersonSubordinated Units were owned by, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (held in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer treasury of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesTransMontaigne Partners.
Appears in 3 contracts
Sources: Merger Agreement (Morgan Stanley), Merger Agreement (Morgan Stanley), Merger Agreement (Morgan Stanley)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (a) 300,000,000 shares of Company Common Stock and (b) 10,000,000 shares of preferred stock, par value $.01 per share (the "Company Preferred Stock"). At As of the close of business on July 26, 2016date hereof, (i) 28,746,664 35,704,665 shares of Company Common Stock were issued and outstanding; outstanding (plus any shares issued upon exercise of Company Stock Options since February 11, 2000), all of which are validly issued, fully paid and nonassessable and (ii) 5,268,463 shares of Company Common Stock are held in the treasury of the Company. As of the date of this Agreement, no shares of the Company Preferred Stock were issued and outstanding; (iii) 4,826,402 . The Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any no other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock authorized, issued or has splitoutstanding.
(b) As of February 11, combined2000, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all (i) 17,779,543 shares of Company Common Stock that may be issued were subject to issuance pursuant to the exercise of outstanding Company Stock Awards or vesting Options, (ii) 170,911 shares of Company RSU Awards will be Common Stock were subject to issuance pursuant to outstanding Company Warrants and (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free iii) 138,354 securities convertible into 2,305,900 shares of preemptive rightsCompany Common Stock were outstanding. Section 4.2(a) of the The Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicablesets forth, with respect to the Company Stock Options outstanding as of February 11, 2000, the aggregate number of shares of Company Common Stock subject to Company Stock Options under each Company Stock Award then outstanding, Option Plan and the type weighted average exercise price of such Company Stock Award grantedOptions. The Company Disclosure Letter also lists the names of all individuals or entities who own Company Warrants, together with the number of shares of Company Common Stock subject to such Company Warrants and the exercise prices of such Company Warrants. No options, warrants or other rights to acquire shares of Company Common Stock Awardhave been granted from February 11, 2000 to the date of grant, exercise or purchase price and expiration thereof. this Agreement.
(c) Except for (i) Company Stock Options granted pursuant to the Company Stock AwardsOption Plans, (ii) stock options granted pursuant to the CareInsite stock option plans and arrangements described in Section 2.04 of the CareInsite Merger Agreement, and (iii) the Company Warrants, there are on no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the date hereof no outstanding (A) securities issued or unissued capital stock of the Company convertible into or exchangeable for any Company Subsidiary or obligating the Company or any Company Subsidiary to issue or sell any shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issueof, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership equity interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the Company Subsidiary. All shares of Company Common StockStock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are on the date hereof no outstanding contractual obligations of the Company or any of its Subsidiaries Company Subsidiary to purchaserepurchase, redeem or otherwise acquire any shares of Company SecuritiesCommon Stock or any capital stock of any Company Subsidiary. Each outstanding share of capital stock of each Company Subsidiary is duly authorized, validly issued, fully paid and nonassessable and each such share owned by the Company or another Company Subsidiary is free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company's or such other Company Subsidiary's voting rights, charges and other encumbrances of any nature whatsoever. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to outstanding contractual obligations of the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to to, or make any investment (in the form of a loan, capital contribution or otherwise) in in, any Company Subsidiary, other than a Company Subsidiary that is wholly owned by the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any and other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not .
(d) On a fully exercised and converted to Company Common Stock basis, the number of shares of Company Common Stock outstanding obligations to which on the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesdate hereof would be 55,961,019.
Appears in 3 contracts
Sources: Merger Agreement (Careinsite Inc), Merger Agreement (Medical Manager Corp/New/), Merger Agreement (Healtheon Webmd Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares of 15,000,000 Company Common Stock Shares and 10,000,000 700,000 shares of Company Preferred Stock. At As of the close of business on July 26October 16, 20162020, 2020 (the “Capitalization Date”), (i) 28,746,664 shares of 7,826,180 Company Common Stock Shares were issued and 7,344,955 Company Shares were outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; and (iii) 4,826,402 481,225 Company Shares were held by the Company in its treasury; (iv) an aggregate . From the Capitalization Date to the execution of 4,390,772 shares this Agreement, the Company has not issued any Company Shares except pursuant to the exercise of Company Stock were reserved for issuance pursuant to outstanding awards and rights under Options or the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares settlement of Company Common Stock, and outstanding Company RSU Awards outstanding as of the Capitalization Date in accordance with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stocktheir terms. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights.
(b) As of the close of business on the Capitalization Date, (i) 212,187 Company Shares were subject to issuance pursuant to Company Options granted and outstanding under the Company Stock Plans, (ii) 12,666 Company Shares were subject to issuance pursuant to Company RSU Awards granted and outstanding under the Company Stock Plans, (iii) 1,109,982 Company Shares were reserved for future issuance under the Company Stock Plans. Section 4.2(a4.2(b) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereofCapitalization Date, of all (A) the name of each holder of Company Options and Company RSU Awards, (B) the number of Company Shares subject to each outstanding Company Option and Company RSU Award held by such holder, (C) the name of the Company Stock AwardsPlan under which the Company Option or Company RSU Award was granted, indicating as applicable(D) the grant or issuance date of each such Company Option and Company RSU Award, (E) with respect to each Company Stock Award then outstandingOption, the type of exercise price and expiration date thereof.
(i) With respect to each Company Stock Award grantedOption, the number per share exercise price was not less than the fair market value (within the meaning of shares Section 409A of the Code) of a Company Common Stock subject to such Company Stock Award, Share on the date of grant, exercise or purchase price grant and expiration thereof(ii) each Company Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies. Each Company Option and Company RSU Award may by its terms be treated at the Effective Time as set forth in Section 3.7.
(d) Except for the Company Stock AwardsOptions and the Company RSU Awards referenced in the first sentence of Section 4.2(b) above, there are on the date hereof no outstanding (Ai) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (Bii) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements agreements, arrangements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (in, or securities convertible into or exchangeable for or with a value that is linked to (including any “phantom” stock, “phantom” stock rights, stock appreciation rights, stock-based units or any other similar interests), capital stock or voting securities or other ownership interests in) in the Company (or, in each case, the economic equivalent thereof), (Ciii) obligations of requiring 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, voting securities or other ownership interests in the Company (the items in clauses (Ai), (Bii) and (Ciii), together with the shares of capital stock of the Company, being referred to collectively as “Company Securities”) or (Div) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. Shares.
(e) There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such SubsidiaryCompany. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities lawsLaws, including the Securities Act and “blue sky” lawsLaws.
(bf) The Company or another of its Subsidiaries is the record and beneficial owner of all of the issued and outstanding shares of capital stock of of, or other equity or voting interests in, each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for which shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights, and there are no irrevocable proxies with respect to any such shares. Except for As of the date hereof, with respect to each Subsidiary of the Company, there are no securities, options, warrants, rights or other agreements or commitments or obligations, in each case of the type described in clauses (i), (ii) and (iii) of the definition of Company Securities, with respect to any capital stock, voting securities or other ownership interests in any Subsidiary of the Company (together with the shares of capital stock of the Subsidiaries of the Company, the “Subsidiary Securities, neither ”).
(g) Neither the Company nor any of its Subsidiaries owns directly has outstanding bonds, debentures, notes or indirectly other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the Company Stockholders on any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment matter.
(in the form of a loan, capital contribution or otherwiseh) in No Company Shares are held by any Subsidiary of the Company.
(i) The Company has taken all actions necessary to (i) render the Company Stockholders’ Right Plan inapplicable to this Agreement and the transactions contemplated by this Agreement; (ii) ensure that in connection with the transactions contemplated by this Agreement, (A) neither Parent, Merger Sub or any other Person. There are not outstanding obligations of their “Affiliates” or “Associates” (each as defined in the Company Stockholders’ Rights Plan) is or will be (1) a “Beneficial Owner” of or deemed to which “beneficially own” and have “Beneficial Ownership” (each as defined in the Company Stockholders’ Rights Plan) of any securities of the Company or any (2) an “Acquiring Person” (as defined in the Company Stockholders’ Rights Plan) and (B) none of its Subsidiaries is a party restricting “Shares Acquisition Date,” a “Distribution Date” (as such terms are defined in the transfer ofCompany Stockholders’ Rights Plan) or a “Triggering Event” (as defined in the Company Stockholders’ Rights Plan) occurs or will occur, in each case of clauses (A) and (B), solely by reason of the execution of this Agreement, or limiting the exercise consummation of voting rights with respect tothe Merger, any Subsidiaries Securitiesthe Offer, or the other transactions contemplated by this Agreement; and (iii) provide that the “Final Expiration Date” (as defined in the Company Stockholders’ Rights Plan) shall occur immediately prior to the Effective Time, but only if the Effective Time shall occur. To the Company’s Knowledge, no Person is an “Acquiring Person” and no “Share Acquisition Date,” “Distribution Date” (as such terms are defined in the Company Stockholders’ Rights Plan) or “Triggering Event” (as defined in the Company Stockholders’ Rights Plan) has occurred. The Company Stockholders’ Rights Plan has not been amended or modified.
Appears in 3 contracts
Sources: Merger Agreement (Endo, Inc.), Merger Agreement (Biospecifics Technologies Corp), Merger Agreement (Endo International PLC)
Capitalization. (a) The authorized capital stock of the Company as of the date of this Agreement consists of 200,000,000 shares of Company Common Stock 56,666,666 Shares and 10,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). At The rights and privileges of each class of the Company’s capital stock are as set forth in the Company’s certificate of incorporation. As of the close of business on July 26May 7, 20162009, (i) 28,746,664 shares of Company Common Stock 16,222,026 Shares were issued and outstanding; outstanding and (ii) no shares of Company Preferred Stock were issued and or outstanding; .
(iiib) 4,826,402 Company Shares were held by Section 3.3(b) of the Company in its treasury; Disclosure Schedule includes a list, as of the date of this Agreement, of (ivi) an aggregate of 4,390,772 shares of each outstanding Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) Option under the Company Stock Plans, there including the identification number of the applicable holder, the Company Stock Plan under which each Company Option is granted, the grant date, the expiration date, the exercise price, and whether any option is an incentive stock option, (ii) the total number of Shares issued under each Company Stock Plan, (iii) the total number of Shares reserved for future issuance under each Company Stock Plan, and (iv) each outstanding Company RSU, including the identification number of the applicable holder, the Company Stock Plan under which such Company RSUs were issued and the issue date. The Company Stock Plans (including all amendments) have been duly approved by the Company’s stockholders. All outstanding Company Options to purchase 2,576,792 shares were granted with an exercise price not less than the fair market value of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the Shares on the date hereofof grant. The Company has made available to the Parent complete and accurate copies of all (x) Company Stock Plans, neither the (y) forms of stock option agreements evidencing Company nor any Options and (z) forms of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards evidencing Company RSUs.
(c) Except as set forth in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All Section 3.3(a) of the outstanding Company Shares have beenAgreement, Sections 3.3(b) and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a3.3(c) of the Company Disclosure Letter contains a trueSchedule or Schedule 5.1 of the Agreement, correct and complete list, (i) there are not as of the date hereofof this Agreement, and at the Acceptance Time there will not be, any equity securities of all Company Stock Awardsany class of the Company, indicating or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (ii) there are not as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grantthis Agreement, exercise or purchase price and expiration thereof. Except for at the Company Stock AwardsAcceptance Time there will not be, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) any options, warrants, equity securities, calls, pre-emptive rights, subscriptions, rights commitments or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to by which the Company or any of its Subsidiaries is bound obligating the Company or any of its subsidiaries to issue, exchange, transfer, deliver, sell or cause to be issued, exchanged, transferred, delivered or sold, additional shares of capital stock or other equity or voting interests of the Company or any security or rights convertible into or exchangeable or exercisable for any such shares or other equity or voting interests, or obligating the Company or any of its subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreement, other than the Top-Up Option. The Company does not have any outstanding stock appreciation rights, phantom stock, performance based rights or similar rights or obligations. None of the Company or, to the Company’s knowledge, any of its Affiliates, is a party restricting the transfer of, to or limiting the exercise of voting rights is bound by any agreement with respect toto the voting (including proxies) or sale or transfer of any shares of capital stock or other equity or voting interests of the Company. For all purposes of this Agreement, the term “Affiliate” when used with respect to any Subsidiaries Securitiesperson means any other person who is an “affiliate” of that first person within the meaning of Rule 405 under the Securities Act. Except as contemplated by this Agreement and except to the extent arising pursuant to applicable state takeover or similar Laws, there are no registration rights, and there is no rights agreement, “poison pill” anti-takeover plan or other similar agreement to which the Company or any Company Subsidiary is bound with respect to any securities of the Company.
(d) All outstanding Shares are, and all Shares subject to issuance as specified in Section 3.3(b) above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Company’s certificate of incorporation or bylaws or any agreement to which the Company is bound.
(e) There are no obligations, contingent or otherwise, of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any Shares or the capital stock of the Company or any of its subsidiaries. The Company has no outstanding bonds, debentures, notes or other indebtedness that have the right to vote on any matters on which stockholders may vote.
Appears in 3 contracts
Sources: Merger Agreement (Covidien PLC), Merger Agreement (Vnus Medical Technologies Inc), Merger Agreement (Covidien Group S.a.r.l.)
Capitalization. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 200,000,000 40,000,000 shares of Company Common Stock and 10,000,000 Class A Stock, 9,000,000 shares of Class B Stock, and 1,000,000 shares of Series A convertible preferred stock, par value $1.00 per share (the “Company Preferred Stock“). At As of the close of business on July 26June 5, 20162012 (the “Capitalization Date“), (i) 28,746,664 10,464,627 shares of Company Common Class A Stock were issued and outstanding; , (ii) 6,209,477 shares of Class A Stock were held in treasury by the Company, (iii) 7,890,497 shares of Class B Stock were issued and outstanding, and (iv) no shares of Class B Stock were held in treasury by the Company. As of the date of this Agreement, no shares of Company Preferred Stock were issued and outstanding; . All issued and outstanding equity securities of the Company are duly authorized, validly issued, fully paid and nonassessable.
(b) Section 3.02(b) of the Company Disclosure Letter contains a schedule, as of the Capitalization Date, setting forth (as applicable) the number of, exercise or reference price, vesting date (or dates) and expiration date (or delivery date) of each outstanding equity award in respect of Company Stock. With respect to each Stock Option, (i) each grant of a Stock Option was duly authorized by all necessary corporate action, including, as applicable, approval by the Board of Directors, or a committee thereof, or a duly authorized delegate thereof, and any required approval by the stockholders of the Company by the necessary number of votes or written consents, and the award agreement governing such grant, if any, was duly executed and delivered by each party thereto within a reasonable time following the date on which such Stock Option was granted (the “Grant Date“), (ii) each such grant was made in accordance with the terms of the applicable plan pursuant to which the grant was effectuated, the Exchange Act and all other applicable Laws, including the rules of NYSE, (iii) 4,826,402 the per share exercise price of each Stock Option was not less than the fair market value of a share of the applicable Company Shares were held by Stock on the Company in its treasury; applicable Grant Date, (iv) an aggregate each such grant was properly accounted for in all material respects in accordance with GAAP in the financial statements (including the related notes) of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and disclosed in accordance with the Exchange Act and all other applicable Laws, and (v) under no modifications have been made to any such grants after the Grant Date.
(c) There are no preemptive or similar rights on the part of any holder of any class of securities of the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares or any of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stockits Subsidiaries. From such date until the date hereof, neither Neither the Company nor any of its Subsidiaries has issued outstanding any shares bonds, debentures, notes or other obligations the holders of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants which have the right to vote (or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and which are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable exercisable for shares of capital stock or voting securities or ownership interests in having the Company, (Bright to vote) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations stockholders of the Company or any of its Subsidiaries on any matter submitted to purchasestockholders or a separate class of holders of capital stock. As of the date of this Agreement, redeem or otherwise acquire any Company Securities. There there are no bondsoptions, debentureswarrants, notes calls, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, contracts, arrangements or undertakings of any kind relating to issued or unissued capital stock or other indebtedness having voting rights (or convertible into securities having such rights) with respect to of the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings of its Subsidiaries to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or by which any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries them is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding bound (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of 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, any additional shares of capital stock of, or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stockstock of, voting securities or other ownership interests in (equity interest in, the Company or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Companyits Subsidiaries, (iiiii) obligations of obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any subscriptionsuch option, warrant, call, right, convertible security, commitment, contract, arrangement or exchangeable security undertaking or (iii) that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights accruing to holders of capital stock of, or other similar agreement or commitment relating to any capital stockequity interests in, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries Subsidiaries.
(d) Except for this Agreement and the Voting Agreement, there are no voting trusts, proxies or other agreements or understandings to make any payment based on which the value Company is a party or is bound with respect to the voting, dividends or disposition of any shares capital stock of any the Company.
(e) Section 3.02(e) of the Company Disclosure Letter sets forth, as of the date of this Agreement, the name and jurisdiction of organization of each Subsidiary of the Company. There are no Company and sets forth a complete and accurate list of all outstanding obligations securities of each Subsidiary and the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securitiesregistered and beneficial owner thereof. All of the outstanding shares of capital stock of the Subsidiaries of, or other equity or voting interests in, each Subsidiary of the Company have been (except for directors’ qualifying shares or the like) are owned directly or indirectly, beneficially and of record, by the Company free and clear of all Liens, pledges, security interests and transfer restrictions, except for such transfer restrictions of general applicability as may be provided under the Securities Act of 1933, as amended (the “Securities Act“), and the rules and regulations promulgated thereunder, or other applicable securities Laws (including any restriction on the right to vote, sell or otherwise dispose of such shares of capital stock or other equity or voting interests). Each outstanding share of capital stock of each Subsidiary of the Company that is held, directly or indirectly, by the Company is duly authorized and authorized, validly issued and are issued, fully paid and paid, nonassessable and are free of preemptive rights, and there are no subscriptions, options, warrants, rights, calls, contracts or other commitments, understandings, restrictions or arrangements relating to the issuance, acquisition, redemption, repurchase or sale of any shares of capital stock or other equity or voting interests of any Subsidiary of the Company, including any right of conversion or exchange under any outstanding security, instrument or agreement, any agreements granting any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or similar rights with respect to any securities of any Subsidiary. Except for None of the Subsidiaries has any outstanding equity compensation plans or policies relating to the capital stock of, or other equity or voting interests in, any Subsidiary Securities, neither of the Company. Neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in payments based on the form price or value of a loan, capital contribution or otherwise) in any securities of any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company dividends paid thereon or revenues, earnings or financial performance or any similar attribute of its Subsidiaries is a party restricting any Subsidiary of the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesCompany.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Cole Kenneth Productions Inc), Merger Agreement (Cole Kenneth Productions Inc)
Capitalization. (a) The authorized capital stock of the Company as of the date of this Agreement consists of 200,000,000 shares of Company Common Stock 20,000,000 Shares and 10,000,000 shares of 1,000,000 preferred shares, par value $0.01 per share (“Company Preferred Stock”). At The rights and privileges of each class of the close Company’s capital stock are as set forth in the Company’s articles of business on July 26, 2016incorporation. As of the date of this Agreement, (i) 28,746,664 shares of Company Common Stock 11,953,384 Shares were issued and outstanding; outstanding and (ii) no shares of Company Preferred Stock were issued and or outstanding; .
(iiib) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a3.3(b) of the Company Disclosure Letter contains Schedule includes a true, correct and complete list, as of the date hereofof this Agreement, of all (i) each outstanding Company Option under the Company Stock AwardsPlans or issued independent of such plans, indicating as applicableincluding the name of the applicable holder, with respect to the Company Stock Plan under which each Company Option is granted, the grant date and acceleration provisions, the expiration date, the exercise price, and whether any option is an incentive stock option, (ii) the total number of Shares issued under each Company Stock Award then outstandingPlan, (iii) the total number of Shares reserved for future issuance under each Company Stock Plan and (iv) each grant of Shares that are subject to repurchase by the Company pursuant to Company Restricted Shares, including the name of the applicable holder, the type Company Stock Plan under which such Company Restricted Shares were issued, the issue date, the applicable vesting and acceleration provisions, any performance targets or market conditions related to vesting and the repurchase price relating to each grant of Company Stock Award granted, the number of shares of Company Common Stock subject to such Restricted Shares. The Company Stock Award, Plans (including all amendments) have been duly approved by the Company’s shareholders. All outstanding Company Options were granted with an exercise price not less than the fair market value of the Shares on the date of grant, exercise or purchase price . The Company has made available to Parent complete and expiration thereof. Except for the accurate copies of all (x) Company Stock AwardsPlans, there are on the date hereof no outstanding (Ay) securities forms of stock option agreements evidencing Company Options and (z) forms of agreements evidencing Company Restricted Shares.
(c) Except as set forth in Section 3.3(a) of this Agreement, Sections 3.3(b) or 3.3(c) of the Company convertible into Disclosure Schedule or exchangeable for shares Schedule 5.1 of capital stock or voting this Agreement, (i) there are not as of the date of this Agreement, and at the Acceptance Time there will not be, any equity securities or ownership interests in of any class of the Company, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (Bii) there are not as of the date of this Agreement, and at the Acceptance Time there will not be, any options, warrants, equity securities, calls, pre-emptive rights, subscriptions, rights commitments or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to by which the Company or any of its Subsidiaries is bound obligating the Company or any of its subsidiaries to issue, exchange, transfer, deliver, sell or cause to be issued, exchanged, transferred, delivered or sold, additional shares of capital stock or other equity or voting interests of the Company or any security or rights convertible into or exchangeable or exercisable for any such shares or other equity or voting interests, or obligating the Company or any of its subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreement, other than the Top-Up Option. The Company does not have any outstanding stock appreciation rights, restricted stock units, phantom stock, performance based rights or similar rights or obligations. None of the Company or, to the Company’s knowledge, any of its Affiliates, is a party restricting the transfer of, to or limiting the exercise of voting rights is bound by any agreement with respect toto the voting (including proxies) or sale or transfer of any shares of capital stock or other equity or voting interests of the Company. For all purposes of this Agreement, the term “Affiliate” when used with respect to any Subsidiaries Securitiesperson means any other person who is an “affiliate” of that first person within the meaning of Rule 405 under the Securities Act. Except as contemplated by this Agreement and except to the extent arising pursuant to applicable state takeover or similar Laws, there are no registration rights, and there is no rights agreement, “poison pill” anti-takeover plan or other similar agreement to which the Company or any Company Subsidiary is bound with respect to any securities of the Company.
(d) All outstanding Shares are, and all Shares subject to issuance as specified in Section 3.3(b) above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the MBCA, the Company’s articles of incorporation or bylaws or any agreement to which the Company is bound.
(e) There are no obligations, contingent or otherwise, of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any Shares or the capital stock of the Company or any of its subsidiaries. The Company has no outstanding bonds, debentures, notes or other indebtedness that have the right to vote on any matters on which shareholders may vote.
Appears in 3 contracts
Sources: Merger Agreement (Somanetics Corp), Merger Agreement (Covidien PLC), Merger Agreement (Somanetics Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (i) 300,000,000 shares of Company Common Stock and 10,000,000 (ii) 30,000,000 shares of Company Preferred Stock. At As of the close of business on July 26, 2016date hereof, (i1) 28,746,664 74,082,150 shares of Company Common Stock were issued and outstanding; , all of which are validly issued, fully paid and nonassessable, (ii2) no 100 shares of Company the Company's Series A Convertible Redeemable Preferred Stock were issued and outstanding; , all of which are validly issued, fully paid and nonassessable, and (3) no shares of Company Common Stock are held in the treasury of the Company. The Company has no other capital stock authorized, issued or outstanding.
(b) As of February 11, 2000, (i) 6,731,500 shares of Company Common Stock were subject to issuance pursuant to outstanding Company Stock Options, (ii) 4,122,129 shares of Company Common Stock were subject to issuance pursuant to outstanding Company Warrants and (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 812,184 shares of Company Common Stock were reserved for issuance pursuant upon the conversion of shares of Series A Convertible Redeemable Preferred Stock. The Company Disclosure Letter sets forth, with respect to outstanding awards and rights under the Company Stock Plans and (v) under Options outstanding as of February 11, 2000, the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares aggregate number of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant subject to the exercise of outstanding Company Stock Awards or vesting Options under each Company Stock Option Plan and the weighted average exercise price of such Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rightsStock Options. Section 4.2(a) of the The Company Disclosure Letter contains a true, correct and complete list, as of also lists the date hereof, names of all individuals or entities who own Company Stock AwardsWarrants, indicating as applicable, together with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Warrants and the exercise prices of such Company Warrants. No options, warrants or other rights to acquire shares of Company Common Stock Awardhave been granted from February 11, 2000 to the date of grant, exercise or purchase price and expiration thereof. this Agreement.
(c) Except for (i) Company Stock Options granted pursuant to the Company Stock AwardsOption Plans and (ii) the Company Warrants, there are on no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the date hereof no outstanding (A) securities issued or unissued capital stock of the Company convertible into or exchangeable for any Company Subsidiary or obligating the Company or any Company Subsidiary to issue or sell any shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issueof, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership equity interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the Company Subsidiary. All shares of Company Common StockCapital Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are on the date hereof no outstanding contractual obligations of the Company or any of its Subsidiaries Company Subsidiary to purchaserepurchase, redeem or otherwise acquire any shares of Company SecuritiesCapital Stock or any capital stock of any Company Subsidiary. Each outstanding share of capital stock of each Company Subsidiary is duly authorized, validly issued, fully paid and nonassessable and each such share owned by the Company or another Company Subsidiary is free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company's or such other Company Subsidiary's voting rights, charges and other encumbrances of any nature whatsoever. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to outstanding contractual obligations of the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to to, or make any investment (in the form of a loan, capital contribution or otherwise) in in, any Company Subsidiary, other than a Company Subsidiary that is wholly owned by the Company or any of its Subsidiaries in exchange for ownership of Common Stock and other Company Subsidiaries, or any other equity interest in Person.
(d) On a fully exercised and converted to Company Common Stock basis, the number of shares of Company or such SubsidiaryCommon Stock outstanding on the date hereof would be 85,747,963, of which 50,763,375 are owned by ASC. All outstanding securities The weighted average exercise price of the Company have been offered Stock Options and issued in compliance in all material respects with all applicable securities laws, including Company Warrants outstanding on the Securities Act and “blue sky” lawsdate hereof is no less than $21.79 per share of Company Common Stock.
(be) The Company or another All of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations ASC is owned of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Companyrecord and beneficially by Medical Manager. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of Such capital stock consists solely of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesASC Common Stock.
Appears in 3 contracts
Sources: Merger Agreement (Medical Manager Corp/New/), Merger Agreement (Careinsite Inc), Merger Agreement (Healtheon Webmd Corp)
Capitalization. (a) The As of the date hereof, the authorized capital stock of the Company consists of 200,000,000 shares of Company two hundred million (200,000,000) Common Stock and 10,000,000 shares of Company Preferred StockShares. At the close of business on July 26May 20, 20162015, (i) 28,746,664 shares of Company 138,842,945 Common Stock Shares were issued and 96,885,085 Common Shares were outstanding; , (ii) no shares of 41,957,860 Common Shares were held in treasury by the Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company 1,663,682 Common Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares outstanding grants of its capital stock or has splitOptions, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, Performance Restricted Stock Units and all shares of Company Common Restricted Stock that may be issued Rights pursuant to the exercise Company’s stock plans listed on Section 5.3(a) of the Company Disclosure Letter. Except as set forth above, at the close of business on May 20, 2015, no Common Shares were issued, reserved for issuance or outstanding. All issued and outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), Common Shares have been duly authorized and validly issued and are fully paid and nonassessable and non-assessable.
(b) There are free no preemptive or similar rights granted by the Company or any Company Subsidiary on the part of preemptive rightsany holders of any class of securities of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has outstanding any bonds, debentures, notes or other obligations the holders of which have 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 such Company Subsidiary on any matter (“Voting Company Debt”). Except as set forth in Section 4.2(a5.3(b) of the Company Disclosure Letter contains a trueLetter, correct and complete listthere are not, as of the date hereof, any options, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, contracts, arrangements or undertakings of all Company Stock Awards, indicating as applicable, with respect any kind to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for which the Company Stock Awards, there are on the date hereof no outstanding (A) securities or any of the Company convertible into Subsidiaries is a party or exchangeable for by which any of them is bound (i) obligating the Company or any of the Company Subsidiaries to issue, deliver or sell or cause to be issued, delivered or sold, additional shares of capital stock or voting securities or ownership interests in the Companyof, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements equity interests in, or commitments requiring any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) obligations of the Company to grant, extend or enter into any subscriptionsuch option, warrant, right, convertible security, unit, commitment, contract, arrangement or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock undertaking. As of the Companydate hereof, being referred to collectively as “Company Securities”) or (D) obligations by the Company or there are not any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding contractual obligations of the Company or any of its the Company Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of capital stock of the Company Securitiesor any of the Company Subsidiaries. There are no bondsproxies, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its the Company Subsidiaries is a party or is bound with respect to the voting of the capital stock of the Company of, or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loanother equity interests in, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsSubsidiaries.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 3 contracts
Sources: Merger Agreement (CVS HEALTH Corp), Merger Agreement (Omnicare Inc), Merger Agreement (CVS HEALTH Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (i) 100,000,000 shares of Company Common Stock and (ii) 10,000,000 shares of preferred stock, par value $0.001 per share, (“Company Preferred Stock”). At As of the close of business on July 26March 27, 2016, 2015 (ithe “Capitalization Date”): (A) 28,746,664 20,874,966 shares of Company Common Stock were issued and outstanding; (iiB) no shares of Company Preferred Stock were issued and or outstanding; (iiiC) 4,826,402 96,712 shares of Company Shares Common Stock were held by the Company in its treasury; (ivD) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 3,108,274 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all ; (E) 386,570 shares of Company Common Stock that may be issued were subject to issuance pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be RSUs (when issued in accordance with which includes the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the maximum number of shares of Company Common Stock subject deliverable under Company RSUs with vesting based upon performance criteria); (F) 1,004,247 shares of Company Common Stock were reserved for future issuance under the Stock Plans. Such issued and outstanding shares of Company Common Stock have been, and all shares that may be issued pursuant to such any Stock Plan or as contemplated or permitted by this Agreement will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued, or in the case of shares that have not yet been issued, will be, fully paid and nonassessable and free of preemptive rights. The Company has made available to Parent or its counsel accurate and complete copies of the Stock Award, Plans. The Stock Plans are the date of grant, exercise only plans or purchase price and expiration thereof. Except for programs the Company Stock Awardsor any Company Subsidiaries has maintained under which stock options, there restricted shares, restricted share units, performance shares or other compensatory equity or equity-based awards have been granted and remain outstanding or may be granted. There are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other contractual obligations of the Company of any kind to issueredeem, purchase or otherwise acquire any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) obligations outstanding shares 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by . Other than the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There , there are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (Indebtedness or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects having the right to vote (or, other than the outstanding Company Equity Awards, convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote. Neither the Company nor any Company Subsidiary is a party to any voting agreement with all applicable respect to any Company securities laws, including the Securities Act and “blue sky” lawsor securities of any wholly-owned Company Subsidiary.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted LiensExcept as set forth in Section 3.2(a), and there are no proxies with respect to any such shares. There are no outstanding (i) securities as of the Company or any of its Subsidiaries convertible into or exchangeable for Capitalization Date, no shares of capital stock or other voting securities or ownership interests in any Subsidiary of the CompanyCompany are issued, reserved for issuance or outstanding, (ii) there is no stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities, and (iii) there are no outstanding securities, options, restricted stockbonds, debentures, notes, warrants, rights calls, rights, commitments, agreements, arrangements or other agreements undertakings of any kind (whether or commitments not currently exercisable) to acquire from which the Company or any of its Subsidiaries, the Company Subsidiaries is a party or obligations by which any of them is bound obligating the Company or any of its the Company Subsidiaries to issue, any capital stockdeliver or sell, voting securities or other ownership interests in (cause to be issued, delivered or securities convertible into or exchangeable for sold, additional shares of capital stock or other voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations Company or of any of the Company Subsidiaries or obligating the Company or any of its the Company Subsidiaries to issue, grant, extend or enter into any subscriptionsuch security, option, warrant, call, right, convertible commitment, agreement, arrangement or exchangeable security or other similar agreement or commitment relating undertaking. The Company beneficially owns the Settlement Shares and Clal does not have the right to tender any capital stock, voting securities or other ownership interests in any Subsidiary of the Company Settlement Shares in the Offer (and Purchaser shall not be required to accept for payment and pay for any of the items Settlement Shares in clauses (i), (ii) and (iii), together connection with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesOffer).
Appears in 3 contracts
Sources: Merger Agreement (Hyperion Therapeutics Inc), Merger Agreement (Horizon Pharma PLC), Merger Agreement (Hyperion Therapeutics Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 500,000,000 shares of Company Common Stock and 10,000,000 50,000,000 shares of Company Preferred Stockpreferred stock. At the close As of business on July 26May 5, 20162017, (i) 28,746,664 58,992,572 shares of Company Common Stock were are issued and outstanding; outstanding of which (i) 108,480 shares are Company Restricted Stock Rights, as set forth in Section 4.03(b), and (ii) 568,847 shares are held in the Company’s treasury, no shares of Company Preferred Stock were preferred stock are issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all no shares of Company Common Stock that may be or preferred stock are held by a Subsidiary of the Company. All outstanding Shares are, and any additional shares of Company Common Stock issued pursuant by the Company after the date hereof and prior to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards Effective Time will be (when issued in accordance with the terms thereof)be, duly authorized and validly issued and are issued, fully paid and nonassessable nonassessable, and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right. Except as set forth in this Section 4.03(a) and for changes after the date hereof resulting from the vesting of awards granted pursuant to the Company Equity Plans outstanding on the date hereof, there are free no outstanding shares of preemptive rightscapital stock of or other voting securities or ownership interests in the Company.
(b) As of May 5, 2017, (i) 364,865 Company Stock Options are outstanding, (ii) 487,404 Company Performance RSUs are outstanding, (iii) 108,480 Company Restricted Stock Rights are outstanding and (iv) 1,090,260 shares of Company Common Stock are authorized and reserved for future issuance pursuant to the Company Equity Plans. Section 4.2(a4.03(b) of the Company Disclosure Letter contains sets forth a true, correct true and complete listlist (which shall be updated not later than five (5) days prior to the Effective Time) of each outstanding award granted pursuant to the Company Equity Plans, as of the date hereofincluding, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstandingthe holder, the type date of Company Stock Award grantedgrant, the vesting schedule and number of shares of Company Common Stock subject to such thereto (assuming target level performance). Except as set forth in this Section 4.03(b), as of the date hereof, there are no Company Stock AwardRights.
(c) As of May 5, 2017, (i) 73,572 Fidelity & Guaranty Life Holdings stock options are outstanding, (ii) no Fidelity & Guaranty Life Holdings restricted stock units are outstanding, (iii) no Fidelity & Guaranty Life Holdings dividend equivalents are outstanding and (iv) no shares of Fidelity & Guaranty Life Holdings common stock are authorized and reserved for future issuance pursuant to the Subsidiary Stock Plans. Section 4.03(c) of the Company Disclosure Letter sets forth a true and complete list (which shall be updated not later than five (5) days prior to the Effective Time) of each outstanding award granted pursuant to the Subsidiary Stock Plan or the Fidelity & Guaranty Life Holdings 2012 Dividend Equivalent Plan, as applicable, including, as applicable, the holder, date of grant, exercise or purchase price price, vesting schedule and expiration thereofnumber of shares of Fidelity & Guaranty Life Holdings common stock subject thereto. Except for the Company Stock Awardsas set forth in this Section 4.03(c), there are on the date hereof no Subsidiary Stock Rights.
(d) There are no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding contractual obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Shares or Company SecuritiesStock Rights or to pay any dividend or make any other distribution in respect thereof. There are no bondsstockholder agreements, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of holding, voting, registration, redemption, repurchase or disposition of, or that restricts the transfer of, any capital stock of the Company or (ii) outstanding contractual obligations to provide funds to other voting securities or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities interests of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary Subsidiaries.
(e) As of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securitiesdate hereof, neither the Company nor any of its Subsidiaries owns directly or indirectly has provided any equity interests in any guarantee with respect to material indebtedness of another Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of other than the Company or any other Person. There are not outstanding obligations to which wholly-owned Subsidiary of the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesCompany.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (CF Corp), Merger Agreement (Fidelity & Guaranty Life)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 300,000,000 shares of Company Common Stock and 10,000,000 5,000,000 shares of preferred stock, par value $0.00001 per share (“Company Preferred Stock”). At As of June 15, 2015 (the close of business on July 26, 2016“Company Capitalization Date”), (ii)(A) 28,746,664 25,938,955 shares of Company Common Stock were issued and outstanding; outstanding (including any Company Restricted Share Awards), (B) no shares of Company Common Stock were held in treasury and (C) no shares of Company Common Stock were held by the Company Subsidiaries, (ii) 5,499,681 shares of Company Common Stock were reserved for issuance pursuant to the Company Equity Plans, of which amount 4,362,635 shares of Company Common Stock are issuable upon the exercise of outstanding Company Stock Options, (iii) 99,357 shares of Company Common Stock were issuable upon the settlement of outstanding Company RSU Award, and (iv) no shares of Company Preferred Stock were issued and or outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 . 681,844 shares of Company Common Stock were reserved authorized for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under ESPP. All the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have beenStock are, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (reserved for issuance as noted above shall be, when issued in accordance with the respective terms thereof), duly authorized and authorized, validly issued and are issued, fully paid and nonassessable non-assessable and are free of preemptive pre-emptive rights. All issued and outstanding shares of capital stock of, or other equity interests in, each Subsidiary of the Company are wholly owned, directly or indirectly, by the Company free and clear of all Liens, other than Company Permitted Liens. Section 4.2(a3.2(a) of the Company Disclosure Letter contains a true, correct sets forth an accurate and complete list, list of all Company Equity Awards outstanding as of the date hereofCompany Capitalization Date, specifying, on a holder-by-holder basis, (i) the name of all Company Stock Awardseach holder, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, (ii) the number of shares of Company Common Stock subject to each such Company Stock Equity Award, (iii) the grant date of each such Company Equity Award, (iv) the year of vesting of each such Company Equity Award or the number of exercisable and unexercisable options underlying such Company Equity Award, in either case, to the extent applicable, and (v) the exercise price for each such Company Equity Award, to the extent applicable.
(b) Except as set forth in Section 3.2(a) above, as of the date of grant, exercise or purchase price and expiration thereof. Except for this Agreement: (i) the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for does not have any shares of capital stock issued or voting securities outstanding other than the shares of Company Common Stock that were outstanding on the Company Capitalization Date or ownership interests that have become outstanding after the Company Capitalization Date but were reserved for issuance as set forth in Section 3.2(a) above as of the CompanyCompany Capitalization Date and (ii) there are no outstanding subscriptions, (B) options, warrants, puts, calls, pre-emptive exchangeable or convertible securities or other similar rights, subscriptions, rights or other agreements or commitments requiring relating to the issuance of capital stock or other equity interests to which the Company to issue, or other obligations any of the Company Subsidiaries is a party or otherwise obligating the Company or any of the Company Subsidiaries to (A) issue, transfer or sell any shares in the capital stock, voting securities or other ownership equity interests in (of the Company or any Company Subsidiary or securities convertible into or exchangeable for capital stock such shares or voting securities or equity interests (in each case other ownership interests in) than to the Company (or, in each case, the economic equivalent thereof), (C) obligations or a wholly owned Subsidiary of the Company to Company); (B) grant, extend or enter into any such subscription, option, warrant, rightput, call, exchangeable or convertible or exchangeable security securities or other similar right, agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and commitment; (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes such shares in its capital or other indebtedness having voting rights equity interests; (or convertible into securities having such rightsD) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any provide a material amount of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to to, or make any material investment (in the form of a loan, capital contribution or otherwise) in in, any Company Subsidiary that is not wholly owned or any other Person or (E) make any payment to any Person the value of which is derived from or calculated based on the value of the Company Common Stock or Company Preferred Stock. Between the Company Capitalization Date and the date of this Agreement, the Company has not granted any equity or equity-based award to any of the directors, employees or independent contractors of the Company or any Company Subsidiaries.
(c) With respect to each grant of its Subsidiaries Company Equity Awards, each such grant was made in exchange accordance with the terms of the applicable Company Equity Plan, the Exchange Act and all other applicable Laws, in each case, in all material respects, including the rules of the NASDAQ.
(d) Neither the Company nor any Company Subsidiary has outstanding bonds, debentures, notes or other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for ownership securities having the right to vote) with the stockholders of Common Stock the Company or any Company Subsidiary on any matter.
(e) There are no voting trusts or other agreements or understandings to which the Company or any Company Subsidiary is a party with respect to the voting of the capital stock or other equity interest in of the Company or such any Company Subsidiary. All outstanding securities .
(f) Each Company Subsidiary and its jurisdiction of organization is identified in Section 3.2(f) of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) Disclosure Letter. The Company or another a Company Subsidiary owns, directly or indirectly, all of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock or other equity interests of each Subsidiary of the CompanyCompany Subsidiary, free and clear of any Lien (preemptive rights and any Liens other than Company Permitted Liens), and there are no proxies with respect to any all of such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership equity interests in any Subsidiary of the Companyare duly authorized, (ii) optionsvalidly issued, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securitiesequity interests in the Company Subsidiaries, neither the Company nor any of its the Company Subsidiaries owns owns, directly or indirectly indirectly, any equity interests interest in any PersonPerson (or any security or other right, agreement or commitment convertible or exercisable into, or exchangeable for or measured by reference to, any equity interest in any person). Neither the Company nor any of the Company Subsidiaries has any obligation to acquire any such equity interestsinterest, security, right, agreement or commitment or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect toin, any Subsidiaries SecuritiesPerson.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Allergan PLC), Merger Agreement (Kythera Biopharmaceuticals Inc), Merger Agreement (Allergan PLC)
Capitalization. (a) The authorized share capital stock of the Company consists of 200,000,000 shares 15,000,000 Company Shares. As of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26, 2016date hereof, (i) 28,746,664 shares of (1) 5,017,556 Company Common Stock Shares were issued and outstanding; , (ii2) no shares of Company Preferred Stock Shares were issued held in treasury and outstanding; (iii3) 4,826,402 no Company Shares were held by the Company in its treasury; Subsidiaries, and (ivii) an aggregate of 4,390,772 shares of 538,000 Company Stock Shares were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stockEquity Plan. All of the outstanding Company Shares have beenare duly authorized, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof)validly issued, duly authorized and validly issued and are fully paid and nonassessable non-assessable and are free of preemptive rights. pre-emptive rights and none of the Company Equity Awards have any voting rights prior to the anticipated Acceptance Time.
(b) Section 4.2(a2.2(b) of the Company Disclosure Letter contains a true, correct and complete listsets forth, as of the date hereof, (i) the aggregate number of all Company Stock Shares that are subject to Company Equity Awards, indicating as applicable(ii) the name or identification number of each holder, with respect (iii) the number of Company Shares subject to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Equity Award, (iv) the grant date of granteach Company Equity Award and (v) the vesting schedule of each Company Equity Award. The Company shall provide Purchaser, exercise or purchase price within three (3) Business Days prior to the anticipated Acceptance Time and expiration thereof. Except for again at the Company Stock AwardsAcceptance Time, there are with an updated complete and correct list, as of each such date, of the information required to be set forth on the date hereof no outstanding (ASection 2.2(b) securities of the Company convertible into Disclosure Letter. No holder of Company Equity Awards has any voting or exchangeable for other rights which can or will vest before the Acceptance Time.
(c) Except as set forth in Section 2.2(a) and Section 2.2(b) above, as of the date hereof: (i) the Company does not have any shares of capital stock or other voting securities issued or ownership interests in the Companyoutstanding or reserved for issuance, and (Bii) there are no outstanding subscriptions, options, warrants, puts, calls, pre-emptive exchangeable or convertible securities or other similar rights, subscriptions, rights or other agreements or commitments requiring relating to the issuance of capital stock to which the Company to issue, or other obligations any of the Company Subsidiaries is a party obligating the Company or any of the Company Subsidiaries to (1) issue, transfer or sell any shares in the capital stock, voting securities or other ownership equity interests in (of the Company or any Company Subsidiary or securities convertible into or exchangeable for capital stock such shares or voting securities or equity interests (in each case other ownership interests in) than to the Company (or, in each case, the economic equivalent thereof), (C) obligations or a wholly owned Subsidiary of the Company to Company); (2) grant, extend or enter into any such subscription, option, warrant, rightput, call, exchangeable or convertible or exchangeable security securities or other similar right, agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company commitment; (the items in clauses (A), (B3) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes such shares in its capital or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company equity interests; or (ii4) outstanding contractual obligations to provide a material amount of funds to to, or make any material investment (in the form of a loan, capital contribution or otherwise) in in, any Company Subsidiary that is not wholly owned.
(d) Neither the Company nor any Company Subsidiary has outstanding bonds, debentures, notes or any other similar obligations, the holders of its Subsidiaries in exchange which have the right to vote (or which are convertible into or exercisable for ownership of Common Stock or any other equity interest in securities having the Company or such Subsidiary. All outstanding securities right to vote) with the members of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawson any matter.
(be) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights trusts or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations understandings to which the Company or any of its Subsidiaries Company Subsidiary is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, to the voting of the capital stock or other equity interest of the Company or any Subsidiaries SecuritiesCompany Subsidiary.
Appears in 3 contracts
Sources: Tender Offer Agreement (Borr Drilling LTD), Tender Offer Agreement (Borr Drilling LTD), Tender Offer Agreement
Capitalization. (a) The authorized capital stock of the Company consists of (i) 200,000,000 shares of Company Common Stock common stock of the Company, par value $0.001 per share, and 10,000,000 (ii) 1,000,000 shares of Preferred Stock, par value $0.001 per share (“Company Preferred Stock”). At the close As of business on July 26January 3, 20162011, there were outstanding (A) 76,965,365 shares of Common Stock, (i) 28,746,664 shares of Company Common Stock were issued and outstanding; (iiB) no shares of Company Preferred Stock were issued and outstanding; Stock, (iiiC) 4,826,402 Company Shares were held by the Company in its treasury; (iv) employee stock options to purchase an aggregate of 4,390,772 9,100,000 shares of Company Common Stock (of which options to purchase an aggregate of 3,764,996 shares of Common Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans exercisable), and (vD) under the Company Stock Plans, there were outstanding Company Options warrants to purchase 2,576,792 an aggregate of 9,362,184 shares of Company Common Stock, and . All outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All stock of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards any employee stock option or vesting of Company RSU Awards other compensation plan or arrangement will be (be, when issued in accordance with the respective terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free nonassessable. No Subsidiary of preemptive rightsthe Company owns any shares of capital stock of the Company. Section 4.2(a5.05(a) of the Company Disclosure Letter Schedule contains a true, complete and correct and complete list, as list of the date hereof, of all (x) each outstanding Company Stock AwardsOption, indicating as applicable, including with respect to each Company Stock Award then outstandingsuch option the holder, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise price, vesting schedule and number of shares of Common Stock subject thereto and (y) each outstanding Company Warrant, including with respect to each such warrant the holder, date of grant, exercise price, and number of shares of Common Stock subject thereto and with respect to (x) and (y) above, the comparable information with respect to such securities immediately after the Effective Time.
(b) There are no outstanding bonds, debentures, notes or purchase price and expiration thereofother indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote. Except as set forth in this Section 5.05 and for changes since December 31, 2010 resulting from the Company Stock Awardsexercise of employee stock options outstanding on such date, there are on no issued, reserved for issuance or outstanding, or obligations whether absolute or contingent, in the date hereof no outstanding future to issue, (Ai) shares of capital stock or other voting securities of or other ownership interest in the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or other voting securities of or other ownership interests interest in the Company, (Biii) options, warrants, calls, pre-emptive rights, subscriptions, rights options or other agreements rights (including conversion or commitments requiring preemptive rights and rights of first refusal or similar rights) to acquire from the Company to issueCompany, or other obligations of the Company to issue, any capital stock, other voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or other voting securities of or other ownership interests in) the Company (or, interest in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (Div) obligations by the Company restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or any of its Subsidiaries to make any payments based similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or of, any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loanof, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities of or ownership interests in any Subsidiary of the Companyin, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), ) though (iiiv) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as the “Subsidiary Company Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company). There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rightsSecurities. Except for Subsidiary Securities, neither Neither the Company nor any of its Subsidiaries owns directly is a party to any voting agreement with respect to the voting of any Company Securities. The Company is not a party to any agreement obligating it to file or indirectly maintain the effectiveness of any equity interests in registration statement under the 1933 Act with respect to any PersonCompany Securities.
(c) As of December 31, or has any obligation to acquire any such equity interests2010, or to provide funds to or make any investment (in the form amount of a loan, capital contribution or otherwise) in any Subsidiary outstanding Indebtedness of the Company or any other Person. There are not outstanding obligations to which the Company or any of and its Subsidiaries is a party restricting (excluding intercompany Indebtedness) does not exceed $393,000 in the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesaggregate.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Hudson Holding Corp), Merger Agreement (Hudson Holding Corp), Merger Agreement (Rodman & Renshaw Capital Group, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 90,000,000 Shares and 15,000,000 shares of Company Common Stock and 10,000,000 preferred stock. As of December 14, 2010 there were outstanding 38,688,190 Shares (of which an aggregate of 100,000 represent shares issuable upon the vesting of Company Preferred Stock. At the close of business on July 26Restricted Stock Units), 2016, (i) 28,746,664 shares of Company Common Stock were issued and outstanding; (ii) no shares of preferred stock, Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) Options to purchase an aggregate of 4,390,772 shares 6,332,614 Shares (of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options which options to purchase 2,576,792 shares an aggregate of 5,464,893 Shares were exercisable) and no Company Common Stock, and Performance Units. All outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All stock of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the upon exercise of outstanding Company Stock Awards or vesting of Company RSU Awards Options will be (be, when issued in accordance with the respective terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) 4.05 of the Company Disclosure Letter Schedule contains a true, correct and complete list, as list of the date hereof, of all (i) each outstanding Company Stock AwardsOption, indicating as applicableincluding the holder, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise price, number of Shares subject thereto and the number of such Shares that have vested and (ii) all outstanding Company Restricted Shares, including with respect to each such share or purchase price unit, the holder, date of grant and expiration thereof. number vested, and such list is complete and accurate in all material respects.
(b) Except for the Company’s obligations under the Rights Agreement and the Company Rights issued pursuant thereto, except as set forth in this Section 4.05 and for changes since December 14, 2010 resulting from the exercise of Company Stock AwardsOptions outstanding on such date, the issuance of shares pursuant to Company Restricted Stock Units and the issuance of shares pursuant to the Company 401(k) Plan, there are on the date hereof no outstanding (Ai) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or ownership interests in the Company, Company or (Bii) options, warrants, calls, pre-emptive rights, subscriptions, rights options or other agreements or commitments requiring rights to acquire from the Company to issueCompany, or other obligations obligation of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Companyin, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable or exercisable for capital stock or other voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), ) and (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as the “Subsidiary Company Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company). There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and Securities.
(c) None of (i) the Shares or (ii) Company Securities are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in owned by any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesCompany.
Appears in 3 contracts
Sources: Merger Agreement (RP Management, LLC), Merger Agreement (Ramius Value & Opportunity LLC), Merger Agreement (Cypress Bioscience Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (i) 145,000,000 shares of common stock of the Company, par value $0.01 per share (the “Company Common Stock”), and (ii) 5,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”). The rights and privileges of the Company Common Stock and 10,000,000 shares of the Company Preferred StockStock are as set forth in the Company’s certificate of incorporation as currently in effect. At the close of business on July 26December 30, 2016, 2020 (ithe “Capitalization Date”): (A) 28,746,664 53,822,535 shares of Company Common Stock were issued and outstanding; (iiB) no an aggregate of 1,044,100 shares of Company Common Stock were subject to outstanding Company RSU Awards; (C) an aggregate of 1,252,266 shares of Company Common Stock were subject to outstanding Company PSU Awards (assuming maximum achievement); (D) an aggregate of 699,297 shares of Company Common Stock were reserved by the Company for issuance under the ESPP; and (E) zero shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by . Since the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until Capitalization Date through the date hereof, other than vesting of Company Equity Awards pursuant to the existing terms of such awards, neither the Company nor any of its Subsidiaries has issued (1) issued, delivered, sold, announced, pledged, transferred, subjected to any shares Lien or granted or otherwise encumbered or disposed of its capital stockany Company Securities or incurred any obligation to make any payments to any Person based on the price or value of any Company Securities or (2) established a record date for, has granted declared, set aside for payment or paid any optionsdividend on, restricted stock, stock appreciation rights, warrants or rights or entered into made any other agreements or commitments to issue any shares of its capital stock, or granted any other awards distribution in respect of of, any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be Securities.
(when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(ab) Part 4.05(b) of the Company Disclosure Letter contains a true, correct and complete listSchedule sets forth, as of the date hereofclose of business on the Capitalization Date, a complete and correct list of (i) all outstanding Company Stock RSU Awards, indicating as applicable, with respect to each Company Stock Award then outstandingincluding the respective name of the holder, the type of Company Stock Award grantedgrant date, the vesting schedule, terms and conditions, the number of shares of Company Common Stock subject to each Company RSU Award and the distribution dates for such shares and (ii) all outstanding Company Stock AwardPSU Awards, including the respective name of the holder, the grant date, the vesting schedule, terms and conditions, the performance period, and the maximum number of shares of Company Common Stock subject to each Company PSU Award.
(c) Except as set forth in this Section 4.05, and for changes since the Capitalization Date resulting from settlement of Company Equity Awards outstanding on such date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awardsgranted thereafter as permitted under Section 6.01(b)(iii), there are on the date hereof no outstanding (Ai) shares of capital stock or voting securities or other Equity Interests of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in other Equity Interests of the Company, (Biii) options, warrants, calls, pre-emptive rights, subscriptions, warrants or other rights or other agreements or commitments requiring arrangements to acquire from the Company to issueCompany, or other obligations or commitments of the Company to issue, transfer, dispose or sell any capital stock, stock or other voting securities or other ownership interests in (Equity Interests in, or any securities convertible into or exchangeable for capital stock or other voting securities or other ownership interests Equity Interests in) the Company (or, in each case, the economic equivalent thereof)Company, (Civ) obligations of restricted shares, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the Company to grantvalue or price of, extend or enter into any subscriptioncapital stock of, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in Equity Interests in, the Company (the items in clauses (A), (Bi)-(iv) and (C), together with the capital stock of the Company, being referred to collectively as the “Company Securities”), (v) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchasevoting trusts, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes proxies or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other similar agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in by which the Company or any of its Subsidiaries in exchange for ownership is bound with respect to the disposition or voting of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries or (vi) contractual obligations or commitments of any character restricting the transfer of, or requiring the registration for sale of, any Company Securities or any securities of the Company’s Subsidiaries. Neither the Company nor any of its Subsidiaries have issued any bonds, debentures, notes or other indebtedness (x) having the right to vote on any matters on which stockholders or equityholders of the Company or any of its Subsidiaries may vote (or which is convertible into into, or exchangeable for shares for, securities having such right), or (y) the value of which is directly based upon or derived from the capital stock or other stock, voting securities or ownership interests in any Subsidiary other Equity Interests of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, . There are no outstanding obligations or obligations commitments of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securitiesof the Company Securities except for acquisitions of shares of Company Common Stock by the Company as satisfaction of the applicable exercise price and/or withholding taxes pursuant to the terms of Company Equity Awards or in accordance with the existing terms of the ESPP. All Company Equity Awards and rights under the ESPP were granted in accordance with the applicable Company Stock Plans, the ESPP, all Applicable Laws, and all applicable securities exchange rules. All Company Equity Awards are evidenced by written award agreements, in each case, substantially in the forms that have been Made Available to Parent. No Subsidiary of the Company owns any Company Securities.
(d) All outstanding shares of capital stock of the Subsidiaries of Company Common Stock have been, and all shares that may be issued pursuant to the Company have been Stock Plan or the ESPP, when issued in accordance with the respective terms thereof, duly authorized and validly issued and are (or, in the case of shares that have not yet been issued, will be) fully paid and paid, nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither and were not issued in violation of and are not subject to any right of rescission or right of first refusal, and have been offered, issued, sold and delivered by the Company nor any in compliance with all requirements of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesApplicable Law.
Appears in 3 contracts
Sources: Merger Agreement (ATN International, Inc.), Merger Agreement (Alaska Communications Systems Group Inc), Merger Agreement (Alaska Communications Systems Group Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 Fifteen Million (15,000,000) Shares and Three Million (3,000,000) shares of Company Common Stock and 10,000,000 shares preferred stock, par value $.01 per share (the "PREFERRED STOCK"). As of Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 shares of Company Common Stock the day immediately preceding the date hereof: 6,876,140 Shares were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company 231,000 Shares were held by in the Company in its Company's treasury; (iv) and there were outstanding, Existing Stock Options to purchase an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights 674,200 Shares under the Company Stock Plans Option Plans, respectively (copies of which have previously been made available to Parent and (v) Sub), and there are no stock appreciation rights or limited stock appreciation rights granted under the Company Stock PlansOption Plans or otherwise outstanding. Since such date, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries (i) has not issued any shares Shares other than upon the exercise of its capital stockExisting Stock Options outstanding on such date, (ii) has not granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, purchase Shares (under the Stock Option Plans or granted any other awards in respect of any shares of its capital stock or otherwise) and (iii) has not split, combined, subdivided combined or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a4.02(a) of the disclosure letter, dated the date hereof, delivered by the Company Disclosure Letter to Parent and Sub prior to the execution of this Agreement setting forth certain information with respect to certain matters referred to in this Agreement (the "DISCLOSURE LETTER"), contains a true, correct accurate and complete list, as of the date hereof, of all Company the name of each Existing Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award grantedOption holder, the number of shares of Company Common outstanding Existing Stock subject to Options held by such Company Stock Awardholder, the grant date of granteach such Existing Stock Option, the number of Shares such holder is entitled to receive upon the exercise or purchase price of each Existing Stock Option and expiration thereofthe corresponding exercise price. Except for the Company Stock Awardsas set forth in this Section 4.02(a), there are on the date hereof no outstanding (Ai) shares of capital stock or other voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (Biii) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring to acquire from the Company to issueCompany, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof)Company, (Civ) 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, voting securities or other ownership interests in the Company (the items in clauses (Ai), (Bii), (iii) and (C), together with the capital stock of the Company, iv) being referred to collectively as “Company Securities”"COMPANY SECURITIES") or and (Dv) obligations by the Company or any of its Subsidiaries subsidiaries to make any payments based on the price or value of the shares of Company Common StockShares. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company SecuritiesSecurities and there are no performance awards outstanding under the Stock Option Plans or any other outstanding stock related awards. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsSubsidiaries.
(b) The Company is, directly or another of its Subsidiaries is indirectly, the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Companyits Subsidiaries, free and clear of any Lien (other than Permitted Liens)lien, mortgage, pledge, charge, security interest or encumbrance of any kind, and there are no irrevocable proxies with respect to any such shares. There Except for shares directly or indirectly owned by the Company, there are no outstanding (i) shares or other securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, Subsidiaries (or obligations of the Company or any of its Subsidiaries to issue, ) any capital stock, voting securities or other ownership interests in (in, or any securities convertible into or exchangeable for any capital stock or stock, voting securities or other ownership interests in) , any Subsidiary of the Companyits Subsidiaries, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company Company's Subsidiaries (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, ) being referred to collectively as “Subsidiary Securities”) "SUBSIDIARY SECURITIES"), or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the CompanySubsidiary. There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 3 contracts
Sources: Merger Agreement (Henkel Acquisition Corp Ii), Merger Agreement (Dep Corp), Merger Agreement (Dep Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares of Company Common Stock and 10,000,000 175,000 shares of preferred stock (the “Company Preferred Stock”). At the close of business on July 26October 22, 20162015, (ia) 28,746,664 79,354,828 shares of Company Common Stock were issued and outstanding; , (iib) no shares of Company Preferred Stock were issued and outstanding; , (iiic) 4,826,402 Company Shares were held by the Company in its treasury; (iv) RSUs with respect to an aggregate of 4,390,772 59,769 shares of Company Common Stock were reserved for issuance pursuant issued and outstanding (including shares of Company Common Stock issuable in respect of dividends declared through such date), and (d) Company Performance Share Awards with respect to outstanding awards an aggregate of 500,478 shares of Company Common Stock based on achievement of applicable performance criteria at target level were issued and rights under outstanding. From October 22, 2015 through the date of this Agreement, the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 has not issued any shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Preferred Stock. From such date until the date hereof, neither the Company nor RSUs, Company Performance Share Awards or any of its Subsidiaries has issued any other Equity Securities.
(b) All outstanding shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have beenCommon Stock are, and all shares of Company Common Stock that may be issued pursuant to upon the exercise of outstanding Company Stock Awards or vesting settlement of Company RSU RSUs and Company Performance Share Awards will be (be, when issued in accordance with the terms thereof)issued, duly authorized and authorized, validly issued and are issued, fully paid and nonassessable and are free of not subject to, or issued in violation of, any preemptive rightsright. Except as set forth in (x) Section 4.2(a3.2(b) of the Company Disclosure Letter contains a trueSchedule, correct and complete list(y) in Section 3.2(a), or (z) pursuant to the terms of this Agreement, as of the date hereof, there are not issued, reserved for issuance or outstanding, and there are not any outstanding obligations of all the Company or any Subsidiary of the Company to issue, deliver or sell, or cause to be issued, delivered or sold, (i) any capital stock of the Company or any Subsidiary of the Company or any securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of capital stock or voting securities of, or other equity interests in, the Company or any Subsidiary of the Company or (ii) any warrants, calls, options or other rights to acquire from the Company or any Subsidiary of the Company, or any other obligation of the Company or any Subsidiary of the Company to issue, deliver or sell, or cause to be issued, delivered or sold, any capital stock or voting securities of, or other equity interests in, the Company or any Subsidiary of the Company (the foregoing clauses (i) and (ii), collectively, “Equity Securities”). Except pursuant to the Company Stock AwardsPlan, indicating as applicablethere are not any outstanding obligations of the Company or any Subsidiary of the Company to repurchase, redeem or otherwise acquire any Equity Securities. There is no outstanding Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote.
(c) Section 3.2(c) of the Company Disclosure Schedule sets forth a complete and accurate list of the following information with respect to each Company Stock RSU and each Company Performance Share Award then outstanding, outstanding as of the type date of this Agreement: (i) the name of the holder of each Company Stock Award granted, RSU or Company Performance Share Award; (ii) the number of shares of Company Common Stock subject to each such Company Stock RSU or Company Performance Share Award, with the number of such shares subject to Company Performance Share Awards listed at both target and maximum levels; (iii) the grant date of grant, exercise each such Company RSU or purchase price Company Performance Share Award and expiration thereof. Except for (iv) the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings Plan pursuant to which the each such Company RSU or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsPerformance Share Award was granted.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 3 contracts
Sources: Merger Agreement (Duke Energy CORP), Merger Agreement (Piedmont Natural Gas Co Inc), Merger Agreement
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares of (i) 30,000,000 Company Common Stock Shares and 10,000,000 (ii) 2,000,000 shares of Company Preferred Stock. At As of the close of business on July 26February 29, 2016, 2012 (ithe “Capitalization Date”): (A) 28,746,664 shares of 10,696,473 Company Common Stock Shares were issued and outstanding; , (iiB) no shares of Company Preferred Stock were issued and outstanding; outstanding and (iiiC) 4,826,402 no shares of Company Shares Capital Stock were held by the Company as treasury shares. All outstanding Company Shares are validly issued, fully paid, nonassessable and free of any preemptive rights. Since the Capitalization Date, and except as otherwise issued after the execution of this Agreement in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under compliance with Section 6.2, the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has not issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any Company Capital Stock other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued than pursuant to the exercise of outstanding Company Options granted under a Company Stock Awards or vesting of Company RSU Awards will be Plan.
(when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. b) Section 4.2(a4.4(b)(i) of the Company Disclosure Letter contains a true, correct and complete listSchedule specifies with respect to each outstanding Company Option, as of the close of business on the Capitalization Date, the name of the holder of such option, the number of Company Shares issuable upon the exercise of such option, the exercise price of such option, the date hereofon which such option was granted, the extent unvested and vested on the Capitalization Date, and whether such option is intended to qualify as an incentive stock option as defined in Section 422 of all the Code. Section 4.4(b)(ii) of the Company Stock Awards, indicating as applicable, Disclosure Schedule specifies with respect to each outstanding award of Company Stock Award then outstandingRestricted Stock, as of the close of business on the Capitalization Date, the type name of Company Stock Award grantedthe holder of such award, the number of shares of Company Common Restricted Stock subject to held by such holder, the repurchase price of such Company Stock AwardRestricted Stock, the date on which such Company Restricted Stock was purchased or granted, and the extent to which such Company right of grantrepurchase or forfeiture has lapsed as of such date. As of the Capitalization Date, exercise or purchase price and expiration thereof. Except 678,221 Company Shares were reserved for future issuance pursuant to stock awards not yet granted under the Company Stock AwardsPlans and, since such date, and except as otherwise issued after the execution of this Agreement in compliance with Section 6.2, the Company has not granted, committed to grant or otherwise created or assumed any obligation with respect to any Company Options, other than as permitted by Section 6.2(b). True, correct and complete copies of the standard equity award agreements under the Company Stock Plans and each agreement for each Company Option and/or Company Restricted Stock that does not conform to the standard equity award agreements under the Company Stock Plans have been delivered or made available by the Company to Parent. No Company Options or Company Restricted Stock have been granted or are outstanding except under and pursuant to a Company Stock Plan.
(c) Except as set forth in this Section 4.4, there are on the date hereof (i) no outstanding shares of capital stock of, or other equity or voting interest in, the Company, (Aii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting securities or ownership interests in interest in, the Company, (Biii) no outstanding options, warrants, calls, pre-emptive rights, subscriptions, rights or other commitments or agreements or commitments requiring to acquire from the Company to issueCompany, or other obligations of that obligates the Company to issue, any capital stockstock of, voting securities or other ownership interests in (equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting securities or other ownership interests interest in) the Company (or, in each case, the economic equivalent thereof)Company, (Civ) no 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 stockstock of, voting securities or other ownership interests in equity or voting interest (including any voting debt) in, the Company (the items in clauses (Ai), (Bii), (iii) and (Civ), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (Dv) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common StockSecurities. There are on the date hereof no outstanding obligations Contracts of any kind that obligate the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights .
(or convertible into securities having such rightsd) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (iExcept as set forth in Section 4.4(d) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary SecuritiesDisclosure Schedule, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting to any Contract which by its terms restricts the transfer of or voting of, requires registration of, or limiting the exercise grants any preemptive rights, anti-dilutive rights or rights of voting first refusal or similar rights with respect to, any Subsidiaries Securitiessecurities of the Company.
Appears in 3 contracts
Sources: Merger Agreement (Nuance Communications, Inc.), Merger Agreement (Nuance Communications, Inc.), Merger Agreement (Transcend Services Inc)
Capitalization. (a) The authorized capital stock of the Company consists of (i) 200,000,000 shares of Company Common Stock Shares and (ii) 10,000,000 shares of Company Preferred Stock. At As of the close of business on July May 26, 20162015 (the “Capitalization Date”), (iA) 28,746,664 shares of 25,647,582 Company Common Stock Shares were issued and outstanding; , (iiB) no shares of Company Preferred Stock were issued and outstanding; , and (iiiC) 4,826,402 no shares of Company Shares Capital Stock were held by the Company in its treasury; (iv) an aggregate as treasury shares. All outstanding Company Shares are validly issued, fully paid, non-assessable and free of 4,390,772 any preemptive rights. Since the close of business on the Capitalization Date, the Company has not issued any shares of Company Capital Stock other than pursuant to the exercise of Company Options, Company Warrants or the settlement of Company RSUs granted under a Company Stock Plan.
(b) Section 3.5(b)(i) of the Company Disclosure Schedule sets forth a listing of all equity plans of the Company. Section 3.5(b)(ii) of the Company Disclosure Schedule sets forth, with respect to each outstanding Company Option and Company Warrant as of the close of business on the Capitalization Date, the name of the holder of such option or warrant, the number of Company Shares issuable upon the exercise of such option or warrant, the exercise price of such option or warrant, the date on which such option was granted or such warrant was issued, the vesting schedule for such option (including any acceleration provisions with respect thereto and any performance-based vesting terms and conditions), including the extent unvested and vested as of the close of business on the Capitalization Date whether such option is intended to qualify as an incentive stock option as defined in Section 422 of the Code, and whether such option is subject to Section 409A of the Code. Section 3.5(b)(iii) of the Company Disclosure Schedule sets forth, with respect to each outstanding Company RSU as of the close of business on Capitalization Date, the name of the holder of such award, the number of Company Shares subject to such award, the date of grant of such award, the applicable vesting and/or settlement schedule (including any acceleration provisions with respect thereto and any performance-based vesting terms and conditions), and whether such Company RSU is subject to Section 409A of the Code). As of the close of business on the Capitalization Date, 3,137,966 Company Shares were reserved for future issuance pursuant to outstanding stock awards and rights not yet granted under the Company Stock Plans and, since such date, the Company has not granted, committed to grant or otherwise created or assumed any obligation with respect to any Company Options, other than as permitted by Section 5.2(b). True, correct and (v) complete copies of all of the forms of equity award agreements under the Company Stock Plans, there were outstanding and all individual agreements containing material deviations from such forms have been delivered or made available by the Company to Parent. No Company Options or Company RSUs have been granted or are outstanding except under and pursuant to purchase 2,576,792 shares of a Company Common StockStock Plan.
(c) Except as set forth in Section 3.5(a) and (b), and there are (i) no outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have beenstock of, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstandingother equity or voting interest in, the type of Company Stock Award grantedCompany, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof (ii) no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting securities or ownership interests in interest in, the Company, (Biii) no outstanding options, warrantsphantom stock, callsphantom units, pre-emptive stock appreciation rights, subscriptionsrestricted stock, performance shares, performance share units, performance units, profits interest, profit participation rights, warrants, rights or other commitments or agreements or commitments requiring to acquire from the Company to issueCompany, or other obligations of that obligates the Company to issue, any capital stockstock of, voting securities or other ownership interests in (equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting securities or other ownership interests interest in) the Company (or, in each case, the economic equivalent thereof)Company, (Civ) no 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 stockstock of, voting securities or other ownership interests in equity or voting interest (including any voting debt) in, the Company (the items in clauses (Ai), (Bii), (iii) and (Civ), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (Dv) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common StockSecurities. There are on the date hereof no outstanding obligations Contracts of any kind which obligate the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights .
(or convertible into securities having such rightsd) with respect to Neither the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or nor any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party Contracts restricting the transfer of, relating to the voting of, requiring registration of, or limiting the exercise granting any preemptive rights, anti-dilutive rights or rights of voting first refusal or similar rights with respect to, to any Subsidiaries Securitiessecurities of the Company.
Appears in 2 contracts
Sources: Acquisition Agreement (Ca, Inc.), Acquisition Agreement (Rally Software Development Corp)
Capitalization. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 200,000,000 400,000,000 shares of Company Common Stock and 10,000,000 50,000,000 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). At the close As of business on July 26February 2, 20162011, (i) 28,746,664 there were 176,833,366 shares of Company Common Stock were issued and outstanding; (ii) , including no Company Restricted Stock Awards, no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all 3,647,194 shares of Company Common Stock that may be issued pursuant to the reserved for issuance upon exercise of outstanding Company Stock Awards or Options, 2,380,442 shares of Company Common Stock reserved for issuance upon vesting of outstanding Company RSU Awards will be (when issued and up to 752,485 shares of Company Common Stock subject to outstanding purchase rights under the Company ESPP. As of February 2, 2011, there were 1,221,905 shares of Company Common Stock held in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) treasury of the Company Disclosure Letter contains a trueand no shares of Company Common Stock held by Subsidiaries of the Company. From February 2, correct and complete list2011 to the date of this Agreement, no additional shares of Company Common Stock have been issued (other than pursuant to Company Stock Options, Company RSU Awards and/or purchase rights under the Company ESPP that were outstanding as of the date hereofFebruary 2, of all 2011), no additional Company Stock AwardsOptions, indicating as applicable, with respect to each Company Restricted Stock Award then outstanding, the type of Awards or Company Stock Award RSU Awards have been issued or granted, and there has been no increase in the number of shares of Company Common Stock subject to issuable upon exercise of Company Stock Options or vesting of Company RSU Awards from those issuable under such Company Stock AwardOptions and Company Restricted RSU Awards as of February 2, 2011. All issued shares of Company Common Stock are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. As of the date of grantthis Agreement, exercise or purchase price except as set forth in this Section 3.3 and expiration thereof. Except except for the Company Stock AwardsRights and purchase rights under the Company ESPP for no more than 752,485 shares of Company Common Stock, (x) there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for authorized shares of capital stock or voting securities or ownership interests in the Company, (B) and there are no options, warrants, calls, pre-emptive rights, subscriptions, convertible securities, preemptive rights or other agreements rights, agreements, claims or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by which obligate the Company or any of its Subsidiaries to make issue, transfer or sell any payments based on the price or value of the shares of capital stock or other voting securities or other equity interest in the Company Common Stock. There or any of its Subsidiaries or securities convertible into or exchangeable for such shares, securities or equity interests, (y) there are on the date hereof no outstanding or authorized contractual obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes shares of capital stock or other indebtedness having voting rights (securities of or convertible into securities having such rights) with respect to other equity interest in the Company or any Company Subsidiary issued of its Subsidiaries or any such securities or agreements listed in clause (x) of this sentence, and outstanding. There (z) there are no (i) voting trusts or other similar agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of any capital stock shares or other voting securities of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) other equity interest in the Company or any of its Subsidiaries in exchange Subsidiaries. The Company has no outstanding bonds, debentures, notes or other obligations the holders of which have the right to vote (or which are convertible into or exercisable for ownership of Common Stock or any other equity interest in securities having the Company or such Subsidiary. All outstanding securities right to vote) with the stockholders of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawson any matter.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 2 contracts
Sources: Merger Agreement (Ensco PLC), Merger Agreement (Pride International Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 25,000,000 shares of Company Common Stock and 10,000,000 3,000,000 shares of Company Preferred Stockpreferred stock of the Company, par value $0.01 per share (none of which are issued or outstanding). At the close of business on July 26April 11, 20162019, (i) 28,746,664 15,500,246 shares of Company Common Stock were issued and outstanding; outstanding (excluding treasury shares) and (ii) no 398,663 shares of Company Preferred Common Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to . All outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All stock of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive or similar rights. No Company Subsidiary owns any shares of capital stock of the Company. As of the close of business on April 11, 2019, (i) 252,400 shares of Company Common Stock were reserved for issuance pursuant to Company Equity Awards not yet granted under the Company Stock Plans, (ii) 168,500 shares of Company Common Stock were subject to issuance upon exercise of outstanding Company Stock Options and (iii) 66,000 shares of Company Common Stock were subject to issuance under outstanding Company RSU Opportunity Awards.
(b) Section 4.2(a4.06(b) of the Company Disclosure Letter contains a true, correct and complete listsets forth, as of the date hereofclose of business on April 11, 2019, a complete and correct list of all (i) the number of shares of Company Common Stock subject to outstanding Company Stock Options and Company RSU Opportunity Awards, indicating as applicable, with respect to each (ii) all outstanding Company Stock Award then outstandingOptions, the type of Company Stock Award granted, including the number of shares of Company Common Stock subject to such Company Stock Awardaward, the grant date, the vesting schedule and the expiration date of grantthereof, and the exercise or purchase price per share, if applicable, and expiration thereof(iii) all outstanding Company RSU Opportunity Awards, including the number of shares of Company Common Stock subject to such award, the grant date and the vesting schedule. Except for The Company has made available to Parent the names of all holders of outstanding Company Stock Options and Company RSU Opportunity Awards as of April 11, 2019. The Company stock plans set forth on Section 4.06(b) of the Company Disclosure Letter (the “Company Stock Plans”) are the only plans or programs the Company or any of the Company Subsidiaries maintains under which stock options, restricted stock, restricted stock units, stock appreciation rights or other compensatory equity and equity-based awards are outstanding and no awards other than Company Stock Options and Company RSU Opportunity Awards have been granted under the Company Stock AwardsPlans or otherwise. With respect to each grant of a Company Equity Award, (i) each such grant was made in accordance with the terms of the applicable Company Stock Plan and applicable Law, and (ii) each such grant was properly accounted for in accordance with GAAP in the Company SEC Documents (including financial statements) and all other applicable Laws.
(c) Except as set forth in this Section 4.06, there are on the date hereof no outstanding (Ai) securities of the Company convertible into or exchangeable for shares of capital stock or other voting securities of or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its the Company Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the CompanyCompany or any of the Company Subsidiaries, (iiiii) options, restricted stock, warrants, calls or other rights or other agreements or commitments arrangements to acquire from the Company or any of its the Company Subsidiaries, or other obligations or commitments of the Company or any of its the Company Subsidiaries to issue, any capital stock, stock or other voting securities or other ownership interests in (in, or any securities convertible into or exchangeable for capital stock or other voting securities or other ownership interests in) , the Company or any Subsidiary of the CompanyCompany Subsidiaries, (iiiiv) obligations restricted shares, restricted stock units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any of the Company Subsidiaries (the items in clauses (i)—(iv) being referred to collectively as the “Company Securities”), (v) voting trusts, proxies or other similar agreements or understandings to which Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is bound with respect to the voting of any shares of capital stock of the Company or any of its the Company Subsidiaries or (vi) contractual obligations or commitments of any character (whether contingent or otherwise) restricting the transfer of, or requiring the registration for sale of, granting any preemptive or anti-dilution rights with respect to grantor requiring the repurchase, extend redemption, disposition or enter into acquisition, or containing any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating right of first refusal with respect to any capital stock, voting securities or other ownership interests in any Subsidiary shares of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations debt securities of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the CompanyCompany Subsidiaries. There are no outstanding obligations or commitments of any character of the Company or any of its the Company Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares Company Securities or any of the capital stock of the Subsidiaries Company Subsidiaries. All Company Stock Options and Company RSU Opportunity Awards may, by their terms, be treated in accordance with Section 2.05.
(d) The Company has not declared or paid any dividend, or declared or made any distribution on, or authorized the creation or issuance of, or issued, or authorized or effected any split-up or any other recapitalization of, any of its capital stock, or directly or indirectly redeemed, purchased or otherwise acquired any of its outstanding capital stock, other than as a result of any cashless exercise of any Company Stock Option. Other than the Company Common Stock, there are no outstanding bonds, debentures, notes or other indebtedness or securities of the Company have been duly authorized having the right to vote (or, other than the outstanding Company Stock Options and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary SecuritiesCompany RSU Opportunity Awards, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Personconvertible into, or has exchangeable for, securities having the right to vote) on any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary matters on which stockholders of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesmay vote.
Appears in 2 contracts
Sources: Merger Agreement (Jefferies Financial Group Inc.), Merger Agreement (Homefed Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 2,000,000,000 Class A Common Shares, 2,000,000,000 Class B Common Shares and 50,000,000 shares of Preferred Stock, par value $.01 per share (the "Company Preferred Stock"). As of September 30, 2000, (i) 390,332,441 Class A Common Stock Shares (excluding treasury shares) and 10,000,000 700,000,000 Class B Common Shares (excluding treasury shares) are issued and outstanding, all of which have been validly issued and are fully paid and nonassessable, (ii) 25,377,233 Class A Common Shares, no Class B Common Shares and no shares of Company Preferred Stock. At Stock were held in the close treasury of business on July 26, 2016the Company, (iiii) 28,746,664 shares of Company 14,970,518 Class A Common Stock Shares were reserved for future issuance (with respect to which options to acquire 11,220,518 Class A Common Shares are issued and outstanding; ) pursuant to stock options or stock incentive rights granted pursuant to the Company's stock option plans and arrangements or pursuant to the Company's 401(k) plans and (iiiv) no shares of Company Preferred Stock were are issued and outstanding; . During the period from September 30, 2000 to the date of this Agreement, (iiix) 4,826,402 Company Shares were held there have been no issuances by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of stock of, or other equity or voting interests in, the outstanding Company Shares have been, and all shares other than issuances of Company Common Stock that may be issued Class A Shares pursuant to the exercise of employee stock options or stock incentive rights granted pursuant to the Company's stock option plans and arrangements outstanding Company Stock Awards on such date or vesting issuances of Company RSU Awards will be Class A Shares pursuant to the Company's 401(k) plans in the ordinary course of business and (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(ay) of there have been no issuances by the Company Disclosure Letter contains a trueof options, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect warrants or other rights to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for acquire shares of capital stock of, or other equity or voting securities or ownership interests in in, the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring . Except as set forth in Section 3.03 of the disclosure schedule delivered by the Company to issueParent and Merger Sub concurrently with the execution of this Agreement (the "Company Disclosure Schedule") or as otherwise contemplated by or specified in this Agreement, there are no options, warrants or other obligations rights, agreements, arrangements or commitments of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment character relating to any capital stock, voting securities the issued or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the unissued capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries subsidiaries or obligating the Company or any of its subsidiaries to make issue or sell any payments based shares of capital stock of, or other equity interests in, the Company or any of its subsidiaries. All shares of capital stock of the Company and any of its subsidiaries subject to issuance as aforesaid, upon issuance on the price or value terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. Except as set forth in Section 3.03 of the shares of Company Common Stock. There Disclosure Schedule, there are on the date hereof no outstanding contractual obligations of the Company or any of its Subsidiaries subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting shares of capital stock of the Company or (ii) outstanding contractual obligations any of its subsidiaries or to provide funds to to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any person, except for any such obligations which would not, individually or in the aggregate, reasonably be expected to have a Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsMaterial Adverse Effect.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 2 contracts
Sources: Merger Agreement (Viacom Inc), Merger Agreement (Viacom Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares of (i) 300,000,000 Company Common Stock Shares and (ii) 10,000,000 shares of Company Preferred Stock. At As of the close of business on July 26May 31, 20162013, (iA) 28,746,664 shares of 69,646,539 Company Common Stock Shares were issued and outstanding; , (iiB) no shares of Company Preferred Stock were issued and outstanding; , and (iiiC) 4,826,402 no shares of Company Shares Capital Stock were held by the Company in its treasury; (iv) an aggregate as treasury shares. All outstanding Company Shares are validly issued, fully paid, non-assessable and free of 4,390,772 shares any preemptive rights. Since the close of Company Stock were reserved for issuance pursuant to outstanding awards and rights under business on the date of this Agreement, the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has not issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any Company Capital Stock other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued than pursuant to the exercise of outstanding Company Options granted under a Company Stock Awards or vesting of Company RSU Awards will be Plan.
(when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. b) Section 4.2(a3.5(b)(i) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicableSchedule sets forth, with respect to each outstanding Company Stock Award then outstandingOption as of the close of business on May 31, 2013, the type name of the holder of such option, the number of Company Shares issuable upon the exercise of such option, the exercise price of such option, the date on which such option was granted, the vesting schedule for such option (including any acceleration provisions with respect thereto), including the extent unvested and vested on May 31, 2013 and whether such option is intended to qualify as an incentive stock option as defined in Section 422 of the Code. Section 3.5(b)(ii) of the Company Disclosure Schedule sets forth, with respect to each outstanding Company RSU as of the close of business on May 31, 2013, the name of the holder of such award, the number of Company Shares subject to such award, the date of grant of such award and the applicable vesting and/or settlement schedule (including any acceleration provisions with respect thereto).
(c) Section 3.5(c)(iii) of the Company Disclosure Schedule sets forth, with respect to each outstanding award of Company Restricted Stock Award grantedas of the close of business on May 31, 2013, the name of the holder of such award, the number of shares of Company Common Restricted Stock subject to held by such holder, the repurchase price of such Company Stock AwardRestricted Stock, the date on which such Company Restricted Stock was purchased or granted, the applicable vesting schedule pursuant to which the Company’s right of grantrepurchase or forfeiture lapses, exercise and the extent to which such Company right of repurchase or purchase price and expiration thereofforfeiture has lapsed as of such date. Except As of the close of business on May 31, 2013, 8,394,338 Company Shares were reserved for future issuance pursuant to stock awards not yet granted under the Company Stock AwardsPlans and, since such date, the Company has not granted, committed to grant or otherwise created or assumed any obligation with respect to any Company Options, other than as permitted by Section 5.2(b). True, correct and complete copies of the standard equity award agreements under the Company Stock Plans and each agreement for each Company Option, Company RSU and/or Company Restricted Stock that does not conform to the standard equity award agreements under the Company Stock Plans have been delivered or made available by the Company to Parent. No Company Options, Company RSUs or Company Restricted Stock have been granted or are outstanding except under and pursuant to a Company Stock Plan.
(d) Except as set forth in this Section 3.5, there are on the date hereof (i) no outstanding shares of capital stock of, or other equity or voting interest in, the Company, (Aii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting securities or ownership interests in interest in, the Company, (Biii) no outstanding options, warrants, calls, pre-emptive rights, subscriptions, rights or other commitments or agreements or commitments requiring to acquire from the Company to issueCompany, or other obligations of that obligates the Company to issue, any capital stockstock of, voting securities or other ownership interests in (equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting securities or other ownership interests interest in) the Company (or, in each case, the economic equivalent thereof)Company, (Civ) no 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 stockstock of, voting securities or other ownership interests in equity or voting interest (including any voting debt) in, the Company (the items in clauses (Ai), (Bii), (iii) and (Civ), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (Dv) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common StockSecurities. There are on the date hereof no outstanding obligations Contracts of any kind which obligate the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights .
(or convertible into securities having such rightse) with respect to Neither the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or nor any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party Contracts restricting the transfer of, relating to the voting of, requiring registration of, or limiting the exercise granting any preemptive rights, anti-dilutive rights or rights of voting first refusal or similar rights with respect to, to any Subsidiaries Securitiessecurities of the Company.
Appears in 2 contracts
Sources: Acquisition Agreement (Salesforce Com Inc), Acquisition Agreement (ExactTarget, Inc.)
Capitalization. (a) The authorized capital stock of the Company comScore consists of 200,000,000 100,000,000 shares of Company comScore Common Stock and 10,000,000 5,000,000 shares of Company comScore preferred stock, par value $0.001 per share (“comScore Preferred Stock”). At the close As of business on July 26September 24, 20162015, (i) 28,746,664 38,940,477 shares of Company comScore Common Stock were issued and outstanding; , (ii) no shares of Company comScore Preferred Stock were issued and outstanding; , (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 2,575,520 shares of Company comScore Common Stock were reserved for issuance pursuant to outstanding options and awards granted pursuant to comScore’s 1999 Stock Plan (the “comScore 1999 Stock Plan”) and rights under comScore’s 2007 Equity Incentive Plan (the Company “comScore 2007 Stock Plan”), and (iv) as of June 30, 2015, 1,265,345 shares of comScore Common Stock were issued and held in the treasury of comScore. Since June 30, 2015, comScore has not issued any securities (including derivative securities) except for shares of comScore Common Stock issued upon exercise of stock options or other stock awards.
(b) The stock plans identified in clause (iii) of the second sentence of Section 4.5(a) represent a complete and accurate list of all stock option plans or any other plan or agreement adopted by comScore that provides for the issuance of equity to any Person (the “comScore Stock Plans”). comScore has made available to Rentrak complete and accurate copies of all comScore Stock Plans and (v) under the Company forms of all award agreements evidencing outstanding comScore Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have beenAwards, and all shares agreements under the comScore Stock Plans that materially deviate from such forms of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be award agreement.
(when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. c) Section 4.2(a4.5(c) of the Company comScore Disclosure Letter contains sets forth a true, correct complete and complete list, accurate list as of the date hereof, hereof of all Company outstanding equity-based awards, whether payable in stock, cash or other property or any combination of the foregoing (the “comScore Stock Awards”) granted under any comScore Stock Plans or otherwise, indicating as applicableindicating, with respect to each Company comScore Stock Award then outstanding, the type of Company Stock Award awards granted, the number of shares of Company comScore Common Stock subject to such Company comScore Stock Award, the plan under which such comScore Stock Award was granted and the exercise or purchase price (if any), date of grant, exercise or purchase price vesting schedule and expiration date thereof, including the extent to which any vesting had occurred as of the September 4, 2015 and whether (and to what extent) the vesting of such comScore Stock Award will be accelerated in any way by the consummation of the transactions contemplated by this Agreement or by the termination of employment or engagement or change in position of any holder thereof following or in connection with the consummation of the Merger.
(d) Except as described in Section 4.5(a) or as otherwise expressly permitted by Section 5.2 of this Agreement and otherwise disclosed to Rentrak, no capital stock of comScore or any of its Subsidiaries or any security convertible or exchangeable into or exercisable for such capital stock, is issued, reserved for issuance or outstanding as of the date of this Agreement. Except as described in Section 4.5(c) of this Agreement and except for changes since the Company Stock Awardsdate of this Agreement resulting from the exercise of employee stock options outstanding on such date or described on Section 4.5(c) of the comScore Disclosure Letter, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Companyexercisable securities, (B) there are no options, preemptive rights, warrants, calls, pre-emptive rights, subscriptionscommitments, rights or other agreements or commitments requiring the Company to issueagreements, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements arrangements or understandings of any kind to which the Company comScore or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company party, or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company by which comScore or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities lawsis bound, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company obligating comScore or any of its Subsidiaries to issue, any capital stockdeliver or sell, voting securities or other ownership interests in (cause to be issued, delivered or securities convertible into or exchangeable for sold, additional shares of capital stock of comScore or voting securities any of its Subsidiaries or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company obligating comScore or any of its Subsidiaries to grant, extend or accelerate the vesting of or enter into any subscriptionsuch option, warrant, call, right, convertible commitment, agreement, arrangement or exchangeable security understanding. There are no stockholder agreements, voting trusts, proxies or other similar agreement agreements, arrangements or commitment relating understandings to any capital stock, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company which comScore or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There is a party, or by which it or they are no outstanding obligations of the Company bound, obligating comScore or any of its Subsidiaries with respect to purchaseany shares of capital stock of comScore or any of its Subsidiaries. There are no rights or obligations, contingent or otherwise (including rights of first refusal in favor of comScore), of comScore or any of its Subsidiaries, to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor comScore or any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary of the Company or any other Personentity. There Except as set forth in Section 4.5(d) of the comScore Disclosure Letter, there are not outstanding obligations no registration rights or other agreements, arrangements or understandings to which the Company comScore or any of its Subsidiaries is a party restricting the transfer ofparty, or limiting the exercise by which it or they are bound, obligating comScore or any of voting rights its Subsidiaries with respect toto any shares of comScore Common Stock or shares of capital stock of any such Subsidiary.
(e) All outstanding shares of comScore Common Stock are, and all shares of comScore Common Stock reserved for issuance as specified above will be, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the comScore Certificate of Incorporation or the comScore Bylaws or any agreement to which comScore is a party or otherwise bound. None of the outstanding shares of comScore Common Stock have been issued in violation of any United States federal or state securities laws. All of the outstanding shares of capital stock of each of the Subsidiaries Securitiesof comScore are duly authorized, validly issued, fully paid and nonassessable, and all such shares (other than directors’ qualifying shares in the case of foreign Subsidiaries) are owned by comScore or a Subsidiary of comScore free and clear of any and all Liens. There are no accrued and unpaid dividends with respect to any outstanding shares of capital stock of comScore or any of its Subsidiaries.
(f) comScore Common Stock constitutes the only class of equity securities of comScore or its Subsidiaries registered or required to be registered under the Exchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Rentrak Corp), Merger Agreement (Comscore, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares of Company Common Stock and 10,000,000 40,000,000 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). At the close of business on July 26March 9, 20162016 (the “Capitalization Date”), (i) 28,746,664 47,049,217 shares of Company Common Stock were issued and outstanding; outstanding (including 25,860 Company Restricted Shares), (ii) 727,997 shares of Company Common Stock were reserved and available for issuance pursuant to the Company Stock Plan, (iii) 1,470,457 shares of Company Common Stock were subject to Company Stock Options, (iv) Company RSUs were outstanding pursuant to which a maximum of 350,677 shares of Company Common Stock could be issued, (v) Company DSUs were outstanding pursuant to which a maximum of 1,630 shares of Company Common Stock could be issued, (vi) a maximum of 264,218 shares of Company Common Stock could be issued under performance stock unit awards (each a “PSU Award”), (vii) 978,006 shares of Company Common Stock were reserved and available for purchase under the Company’s Employee Stock Purchase Plan (the “Company ESPP”) and (viii) no shares of Company Preferred Stock were issued and or outstanding; (iii) 4,826,402 Company Shares were held by . Since the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until Capitalization Date through the date hereofof this Agreement, neither the Company nor any of its Subsidiaries has (A) issued any Company Securities or incurred any obligation to make any payments based on the price or value of any Company Securities or (B) established a record date for, declared, set aside for payment or paid any dividend on, or made any other distribution in respect of, any shares of its the Company’s capital stock, has granted any optionsother than, restricted stockin each case, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise lapsing of outstanding forfeiture conditions with respect to Company Stock Awards or Restricted Shares, the vesting of Company RSU Awards will be RSUs and PSU Awards, the exercise of Company Stock Options or the forfeiture or withholding of taxes with respect to Company Stock Options, Company Restricted Shares, Company RSUs, Company DSUs or PSU Awards.
(when issued b) Except as described in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. this Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list3.02, as of the date hereofCapitalization Date, there were (i) no outstanding shares of all Company Stock Awardscapital stock of, indicating as applicable, with respect to each Company Stock Award then outstandingor other equity or voting interests in, the type of Company Stock Award grantedCompany, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof (ii) no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting securities or ownership interests in in, the Company, (Biii) no outstanding options, warrants, calls, pre-emptive rights, subscriptions, rights or other commitments or agreements or commitments requiring to acquire from the Company to issueCompany, or other obligations of that obligate the Company to issue, any capital stockstock of, voting securities or other ownership equity or voting interests in (in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof)Company, (Civ) no 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 stockstock of, voting securities or other ownership equity or voting interests in in, the Company (the items in clauses (Ai), (Bii), (iii) and (C), together with the capital stock of the Company, iv) being referred to collectively as “Company Securities”) or and (Dv) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of any Company Common StockSecurities. There are on the date hereof no outstanding obligations agreements of any kind which obligate the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes Securities (other than Company Restricted Shares or other indebtedness having voting rights (pursuant to the cashless exercise of Company Stock Options or convertible into securities having such rights) the forfeiture or withholding of taxes with respect to Company Stock Options, Company Restricted Shares, Company RSUs, Company DSUs or PSU Awards), or obligate the Company to grant, extend or enter into any such agreements relating to any Company Securities, including any agreements granting any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or similar rights with respect to any Company Securities. No direct or indirect Subsidiary of the Company owns any Company Common Stock. None of the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which of the Company or any of its Subsidiaries is a party to any stockholders’ agreement, voting trust agreement, registration rights agreement or other similar agreement or understanding relating to any Company Securities or any other agreement relating to the disposition, voting or dividends with respect to any Company Securities. All outstanding shares of Company Common Stock and all Company Common Stock reserved for issuance as noted in this Section 3.02, when issued in accordance with the voting respective terms thereof, are or will be duly authorized, validly issued, fully paid and non-assessable, and are not subject to and were not issued in violation of any pre-emptive or similar rights, purchase options, call or right of first refusal or similar right.
(c) All of the outstanding shares of capital stock of, or other equity or voting interests in, each Subsidiary of the Company are owned directly or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form indirectly, beneficially and of a loanrecord, capital contribution or otherwise) in by the Company or any free and clear of its Subsidiaries in exchange all Liens and transfer restrictions, except for ownership Permitted Liens and such Liens and transfer restrictions of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including general applicability as may be provided under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “blue sky” laws.
Securities Act”) or other applicable securities Laws (b) The Company including any restriction on the right to vote, sell or another otherwise dispose of its Subsidiaries is the record and beneficial owner such shares of all the issued and capital stock or other equity or voting interests). Each outstanding shares share of capital stock of each Subsidiary of the Company, is duly authorized, validly issued, fully paid, nonassessable and free and clear of any Lien (other than Permitted Liens)preemptive rights, and there are no proxies with respect subscriptions, options, warrants, rights, calls, contracts or other commitments, understandings, restrictions or arrangements relating to the issuance, acquisition, redemption, repurchase or sale of any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other equity or voting securities or ownership interests in of any Subsidiary of the Company, (ii) optionsincluding any right of conversion or exchange under any outstanding security, restricted stockinstrument or agreement, warrantsany agreements granting any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, to any Subsidiaries Securitiessecurities of any Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Fresh Market, Inc.), Merger Agreement (Fresh Market, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (i) 60,000,000 shares of Company Common Stock and 10,000,000 (ii) 15,000,000 shares of preferred stock, par value $.01 per share ("Company Preferred Stock"). At As of the close of business on July 26March 25, 20162002, (i) 28,746,664 33,487,650 shares of Company Common Stock were issued and outstanding; , all of which are duly authorized, validly issued, fully paid and nonassessable, (ii) 50,000 shares of Restricted Stock were issued and outstanding, (iii) no shares of Company Common Stock were held in the treasury of the Company, (iv) no shares of Company Common Stock were held by the Subsidiaries, (v) 3,822,307 shares of Company Common Stock were reserved for future issuance pursuant to outstanding employee stock options granted pursuant to the Company Stock Option Plans and (vi) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by . Except as set forth above or in Section 5.03 of the Company in its treasury; (iv) an aggregate Disclosure Schedule, there are no options, warrants or other rights, agreements, arrangements or commitments of 4,390,772 shares any character relating to the issued or unissued capital stock of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under or any Subsidiary or obligating the Company Stock Plans, there were outstanding Company Options or any Subsidiary to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued issue or sell any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stockof, or granted other equity interests in, the Company or any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rightsSubsidiary. Section 4.2(a5.03(a) of the Company Disclosure Letter contains a true, correct and complete list, as of Schedule sets forth the date hereof, of all Company Stock Awards, indicating as applicable, following information with respect to each Company Stock Award then outstanding, Option outstanding as of the type date of Company Stock Award granted, this Agreement: (i) the name and address of the optionee; (ii) the number of shares of Company Common Stock subject to such Company Stock Award, Option; (iii) the exercise price of such Company Stock Option; (iv) the date of grant, exercise or purchase price and expiration thereof. Except for the on which such Company Stock Awards, there are on Option was granted; (v) the applicable vesting schedule; and (vi) the date hereof no outstanding (A) securities of the on which such Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the Stock Option expires. All shares of Company Common StockStock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are on the date hereof no outstanding contractual obligations of the Company or any of its Subsidiaries Subsidiary to purchaserepurchase, redeem or otherwise acquire any shares of Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company Common Stock or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company any Subsidiary or (ii) outstanding contractual obligations to provide funds to to, or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or in, any of its Subsidiaries in exchange for ownership of Common Stock Subsidiary or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsperson.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and Each outstanding shares share of capital stock of each Subsidiary of is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company, Company or another Subsidiary free and clear of any Lien (other than Permitted Liens)all security interests, and there are no proxies with respect to any such shares. There are no outstanding (i) securities liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company Company's or any of its Subsidiaries convertible into Subsidiary's voting rights, charges and other encumbrances, except for limitations on transfer imposed by federal or exchangeable for shares of capital stock or other voting state securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesLaws.
Appears in 2 contracts
Sources: Merger Agreement (Quest Diagnostics Inc), Merger Agreement (Unilab Corp /De/)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 shares of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as As of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the authorized capital stock of the Company, being referred and shares issued and outstanding, is as set forth in the Company’s most recent periodic report filed with the SEC, with the exception of (i) shares issued and outstanding subsequent to collectively the Company’s most recent periodic report filed with the SEC, which are otherwise disclosed in the SEC Documents or that do not materially change the number of shares issued and outstanding and will be disclosed in the Company’s next periodic report, (ii) 2,917 shares issued to independent directors in connection with services provided in the quarter ended December 31, 2019, (iii) 188 shares issued to certain service providers in connection with services provided in the quarter ended December 31, 2019, and (iv) adjustment to the number of shares issued and outstanding in connection with the Company’s reverse stock split on January 15, 2020 as “disclosed in the SEC Documents. Except as disclosed in the SEC Documents or in connection with recently issued convertible securities that have substantially similar terms to previously issued and disclosed convertible securities (in the principal amount of no more than $63,501.15), do not materially change the number of shares reserved for issuance, and will be disclosed in the Company’s next periodic report, no shares are reserved for issuance pursuant to the Company’s stock option plans, no shares are reserved for issuance pursuant to securities (other than the Note) exercisable for, or convertible into, or exchangeable for shares of Common Stock, and 327,230 shares are reserved for issuance upon conversion of the Note. All of such outstanding shares of capital stock are, or upon issuance will be, duly authorized, validly issued, fully paid and non-assessable. No shares of capital stock of the Company Securities”) are subject to preemptive rights or (D) obligations by any other similar rights of the shareholders of the Company or any of its Subsidiaries liens or encumbrances imposed through the actions or failure to make any payments based on the price or value act of the Company. Except as disclosed in the SEC Documents or described herein, as of the effective date of this Agreement, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of Company Common Stock. There are on the date hereof no outstanding obligations capital stock of the Company or any of its Subsidiaries to purchaseSubsidiaries, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to arrangements by which the Company or any of its Subsidiaries is a party with respect or may become bound to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding issue additional shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There there are no outstanding obligations of the Company agreements or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to arrangements under which the Company or any of its Subsidiaries is a party restricting obligated to register the transfer ofsale of any of its or their securities under the 1933 Act and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Note, Commitment Shares, Returnable Shares, or limiting the exercise Conversion Shares. The Company has filed in its SEC Documents true and correct copies of voting the Company’s Certificate of Incorporation as in effect on the date hereof (“Certificate of Incorporation”), the Company’s By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities convertible into or exercisable for Common Stock of the Company and the material rights of the holders thereof in respect thereto, with respect tothe exception of recently issued convertible securities that have substantially similar terms to previously issued and disclosed convertible securities (in the principal amount of no more than $63,501.15), any Subsidiaries Securitiesdo not materially change the number of shares reserved for issuance, and will be disclosed in the Company’s next periodic report. The Company shall provide the Buyer with a written update of this representation signed by the Company’s Chief Executive on behalf of the Company as of the Closing Date.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Cardax, Inc.), Securities Purchase Agreement (Cardax, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 20,000,000 common shares, no par value, and as of August 14, 2019 there are 7,293,697 shares of Company Common Stock were issued and outstanding; outstanding (ii) no including 16,275 shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any Company Restricted Stock Awards) and of which no shares are held in treasury. The Company has no authorized, issued or outstanding preferred shares. The Company’s common shares (the “Shares”), as described above, constitute all of its the issued and outstanding capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company as of the date of this Agreement. The Shares have beenbeen duly authorized, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable nonassessable. None of the Shares have been issued or disposed of in violation of any preemptive rights of any Person. As of the date of this Agreement, 92,485 Shares were reserved for issuance upon the exercise of outstanding Company Stock Options and are free 103,173 Shares were available for future grants of preemptive rightsequity awards under Company Stock Plans. Section 4.2(aThe Company has furnished to Parent a true, complete copy of any Company Stock Plan, and Schedule 3.6(a) of the Company Disclosure Letter contains Schedule sets forth a true, correct complete and complete list, accurate list of all participants in any such Company Stock Plan as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, hereof and identifies the number of shares of Company Common Stock Shares subject to such Company Stock Plans held by each participant therein, the exercise price or prices of any Company Equity Award, if applicable, and the dates each Company Equity Award was granted, becomes exercisable (if applicable) and expires (if applicable). As of the date of grantthis Agreement, exercise no trust preferred or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) subordinated debt securities of the Company convertible into or exchangeable for any of its Subsidiaries are issued or outstanding. The Company has not elected to defer interest payments with respect to any trust preferred securities or related debentures issued by it or any of its affiliates. All outstanding shares of capital stock or voting securities or ownership interests of Bank of New Jersey are validly issued, fully paid and nonassessable and directly and wholly owned by the Company free and clear of any Liens other than Permitted Liens.
(b) Except as disclosed in Schedule 3.6(b) of the CompanyCompany Disclosure Schedule, there are no outstanding (Bi) rights, plans, options, warrants, calls, pre-emptive rights, subscriptions, conversion rights or other agreements any agreements, arrangements or commitments requiring of any kind or character (either firm or conditional) obligating the Company or any of its Affiliates to issue, deliver or other obligations of the Company sell, or cause to issuebe delivered or sold, any capital stockstock of the Company, voting or any securities exchangeable for or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”(ii) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding contractual obligations of the Company or any of its Subsidiaries Affiliates, or rights of a Person, to purchaserepurchase, redeem or otherwise acquire any shares of capital stock of the Company Securitiesor its Subsidiaries, or (iii) proxies, voting agreements (except for the Voting Agreements), voting trusts, preemptive rights, rights of first refusal, rights of first offer, rights of co-sale or tag-along rights, shareholder agreements or other rights, understandings or arrangements regarding the voting or disposition of the Shares. There are no No bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect the right to vote on any matters on which the holders of capital stock may vote have been issued by the Company or any Company and are outstanding.
(c) No Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which of the Company or owns any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsCompany.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 2 contracts
Sources: Merger Agreement (Bancorp of New Jersey, Inc.), Merger Agreement (ConnectOne Bancorp, Inc.)
Capitalization. (a) The authorized capital stock Capital Stock of the Company consists of 200,000,000 450,100,000 shares of Company Common Stock and 10,000,000 50,000,000 shares of Company Preferred Stock. At As of the close of business on July 26, 2016date hereof, (i) 28,746,664 151,472,853 shares of Company Common Stock were are issued and outstanding; , including 10,765,688 Company Restricted Shares, all of which have been duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, other than as disclosed in Section 5.02 of the Company Disclosure Schedule, (ii) no 33,367,187 shares of Company Preferred Stock were are issued and outstanding; , all of which have been duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, and (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 6,794,510 shares of Company Common Stock were are reserved for issuance pursuant to outstanding awards upon vesting and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were settlement of outstanding Company Options Plans (in addition to purchase 2,576,792 Company Restricted Shares outstanding). The outstanding shares of Company Common Stock, the Company Preferred Stock, the Company Restricted Shares and outstanding the Company RSU Awards Plans have been issued in compliance with respect to 1,813,980 shares of Company Stockall applicable securities Laws. From such date until Since the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants except as permitted by this Agreement or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards as disclosed in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a5.02(a) of the Company Disclosure Letter contains Schedule, (x) no shares of Capital Stock of the Company have been issued, and (y) no options, warrants or securities convertible into, or commitments with respect to the issuance of, shares of Capital Stock of the Company have been issued, granted or made. Section 5.02(a) of the Company Disclosure Schedule sets forth a true, correct and complete list, list of the holders of record of Company Common Stock and Company Preferred Stock as of the date hereof, .
(b) Section 5.02(b) of the Company Disclosure Schedule sets forth a complete and accurate list of all Company Stock AwardsPlans and all holders of Company Restricted Shares, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award grantedRestricted Share, the number of shares of Company Common Stock subject to such Company Stock AwardRestricted Shares, the date of grant, exercise or purchase price settlement terms, vesting period and the expiration date thereof. The Company has delivered or made available to Yuma accurate and complete copies of all Company Stock Plans, the standard forms of the Company Restricted Share Agreement evidencing Company Restricted Shares, and any Company Restricted Share Agreements evidencing a Company Restricted Share that deviates in any material manner from the Company’s standard forms of the Company Restricted Share Agreement.
(c) Except for the shares of the Company Preferred Stock Awardsand the terms and conditions of the Company Stockholder Agreement, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Companysubscriptions, (B) options, warrants, calls, pre-emptive rightscontracts, subscriptionscommitments, understandings, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreements agreement and also including any rights plan or commitments requiring the other anti-takeover agreement, obligating any DPAC Company to issue, deliver or other obligations sell, or cause to be issued, delivered or sold, additional shares of the Capital Stock of any DPAC Company to issue, or obligating any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) obligations of the DPAC Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar such agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securitiescommitment. There are no bonds, debentures, notes outstanding stock appreciation rights or other indebtedness having voting similar derivative securities or rights (or convertible into securities having such rights) with respect to of any DPAC Company. Except for the Company or any Company Subsidiary issued and outstanding. There Stockholder Agreement, there are no (i) voting trusts trusts, irrevocable proxies or other agreements or understandings to which the any DPAC Company or any of its Subsidiaries is a party or is bound with respect to the voting of capital stock any shares of Capital Stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsCompany.
(bd) The Company or another All of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock Capital Stock (or equivalent equity interests of entities other than corporations) of each Subsidiary of the Company’s Subsidiaries are owned, directly or indirectly, by the Company free and clear of any Lien (liens, other than Permitted Liens)statutory liens for Taxes not yet due and payable, such other restrictions as may exist under applicable securities Law, and there are no proxies with respect to any such shares. There are no outstanding (iliens in favor of the Company’s lenders as listed on Section 5.02(d) securities of the Company or any of its Subsidiaries convertible into or exchangeable for Disclosure Schedule, and all such shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and authorized, validly issued and are fully paid and nonassessable non-assessable and are free of preemptive rights. Except for Subsidiary Securities, neither with no personal liability attaching to the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesownership thereof.
Appears in 2 contracts
Sources: Merger Agreement (Yuma Energy, Inc.), Agreement and Plan of Merger and Reorganization (Yuma Energy, Inc.)
Capitalization. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 200,000,000 20,000,000 shares of Company Common Stock and 10,000,000 5,000,000 shares of preferred stock, par value $0.01 per share, of the Company (the “Company Preferred Stock”). At As of the close date of business on July 26this Agreement, 2016, (i) 28,746,664 there were 1,257,938 shares of Company Common Stock were issued and outstanding; outstanding (iinot including 2,180,562 shares of Company Common Stock held by the Company as treasury stock) and no shares of Company Preferred Stock were issued or outstanding. The issued and outstanding; (iii) 4,826,402 outstanding Company Shares were held by Common Stock as of the Company in its treasury; (iv) an aggregate date of 4,390,772 this Agreement included 5,009 shares of unvested restricted stock (the “Restricted Company Stock were reserved for issuance Stock”) issued pursuant to outstanding awards the Company’s Amended and rights Restated Recognition and Retention Plan (the “Retention Plan”), 114,139 shares allocated under the Company Stock Plans ESOP provisions of the 401(k) Plan, and all Share Equivalents (v) under if any). As of the Company Stock Plansdate of this Agreement, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all no shares of Company Common Stock that may be issued pursuant to the or Company Preferred Stock reserved for issuance upon exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issuesimilar instruments, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the there were no shares of Company Common Stock. There are on the date hereof no restricted stock outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiaryexcept those specified above. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company Common Stock have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights, with no personal liability attaching to the ownership thereof. Except for Subsidiary Securities, neither as reflected in Section 4.2(a) of the Company nor Disclosure Schedule, the Company does not have and is not bound by any outstanding subscriptions, options, warrants, rights, calls, commitments or agreements of its Subsidiaries owns directly any character calling for the purchase or indirectly issuance of any shares of Company Common Stock or Company Preferred Stock or any other equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary security of the Company or any securities representing the right to purchase or otherwise receive any shares of Company Common Stock or Company Preferred Stock or any other Personequity security of the Company. The Retention Plan terminated pursuant to its terms in October 2007, and no additional shares of Company Common Stock are available for grants thereunder. Other than as a result of any forfeitures, there are no additional shares of Company Common Stock available for allocation under the ESOP provisions of the 401(k) Plan. As of the date of this Agreement, the names of the holders of unvested Restricted Company Stock and the number of shares thereof held by each of them on the date of this Agreement are set forth in Section 4.2(a) of the Company Disclosure Schedule.
(b) The Company owns, directly, all of the issued and outstanding shares of the capital stock or other equity interests of the Company Bank, free and clear of all liens, charges, encumbrances and security interests whatsoever, and all of such shares or equity interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof. There are not no outstanding obligations subscriptions, options, warrants, rights, calls, commitments or agreements of any character calling for the purchase or issuance of any shares of capital stock or any other equity interest of or any securities representing the right to which purchase or otherwise receive any shares of capital stock or any other equity interest of the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesBank.
Appears in 2 contracts
Sources: Merger Agreement (Gs Financial Corp), Merger Agreement (Home Bancorp, Inc.)
Capitalization. (a) The authorized capital stock equity of the Company consists of 200,000,000 shares unlimited Company Common Shares and 2,300,000 Company Preferred Shares. The only beneficiaries of the FUMI Share Trust are the holders of Company Common Stock Shares. The authorized equity of FUMI consists of 100 FUMI Shares, all of which are issued and 10,000,000 shares outstanding and owned by the FUMI Share Trust. As of Company Preferred Stock. At the close of business on July 26, 2016date hereof, (i) 28,746,664 shares of 34,805,912 Company Common Stock Shares and 984,800 Company Preferred Shares were issued and outstanding; (ii) no shares , all of which Company Common Shares and Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and paid, nonassessable and free of preemptive rights, (ii) -0- Company Common Shares were held in the -32- treasury of the Company, (iii) -0- Company Preferred Shares were held in the treasury of the Company, (iv) 1,000,000 Company Common Shares were reserved for issuance upon exercise of the option or right to purchase Company Common Shares granted under the Company Option Plans or otherwise granted by the Company (each, a "COMPANY OPTION") and Company Warrants issued and outstanding and (v) 11,316,000 Company Common Shares were reserved for issuance upon conversion of the outstanding Company Preferred Shares, all of which were validly issued and are fully paid, nonassessable and free of preemptive rights. Section 4.2(aBetween September 30, 2001 and the date hereof, (i) no Company Common Shares or Company Preferred Shares have been issued, except in connection with the conversion of Company Preferred Shares or the exercise of Company Options or Warrants issued and outstanding and (ii) no options, warrants, securities convertible into, or commitments with respect to the issuance of, shares of beneficial interests of the Company Disclosure Letter contains or the FUMI Share Trust have been issued, granted or made. As of the Effective Time, there shall be no Company Options issued and outstanding.
(b) Except for (i) Company Preferred Shares, (ii) Company Options issued and outstanding and (iii) Warrants to purchase a true, correct and complete listmaximum of 500,000 Company Common Shares, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof were no outstanding (A) securities subscriptions, options, calls, contracts, commitments, understandings, restrictions, arrangements, rights or warrants, including any right of the Company convertible into conversion or exchangeable for shares of capital stock exchange under any outstanding security, instrument or voting securities other agreement and also including any rights plan or ownership interests in other anti-takeover agreement, obligating the Company, (B) optionsthe FUMI Share Trust, warrants, calls, pre-emptive rights, subscriptions, rights FUMI or other agreements or commitments requiring the Company any of their subsidiaries to issue, deliver or other obligations of sell, or cause to be issued, delivered or sold, additional Company Common Shares, Company Preferred Shares, FUMI Shares or obligating the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each caseCompany, the economic equivalent thereof)FUMI Share Trust, (C) obligations FUMI or any of the Company their respective subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar such agreement or commitment relating to any capital stock, voting securities or other ownership interests commitment.
(c) Except as provided in Section 6.02(c) of the Company Disclosure Schedule, there are no and shall be no obligations, contingent or otherwise, of the Company, the FUMI Share Trust, FUMI or their respective subsidiaries to (the items in clauses i) redeem or otherwise acquire (A)) any Company Common Shares, (B) and any Company Preferred Shares, (C), together with ) any FUMI Shares or (D) the capital stock beneficial interests or other equity interests of any subsidiary of the Company, being referred to collectively as “Company Securities”except in connection with the exercise of (X) or (D) obligations by the Company or any of its Subsidiaries to make any payments based conversion rights on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations account of the Company Preferred Shares, (Y) Company Options issued and outstanding or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rightsZ) with respect to the Company or any Company Subsidiary Warrants issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or , (ii) outstanding contractual obligations to pay or distribute any dividend or distribution on the Company Preferred Shares or (iii) provide material funds to to, or make any material investment in (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies or provide any guarantee with respect to the obligations of, any such sharesperson. There are no outstanding (i) securities of the Company stock appreciation rights or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting similar derivative securities or ownership interests in any Subsidiary rights of the Company, the FUMI Share Trust, FUMI or any their respective subsidiaries. Furthermore, since the issuance of the Company Preferred Shares, the Company has paid dividends on the Company Preferred Shares in an amount at least equal to $0.525 per Company Preferred Share for each Dividend Period (iias defined in the Preferred Certificate).
(d) optionsThere are no bonds, restricted stockdebentures, warrantsnotes or other indebtedness of the Company, rights the FUMI Share Trust, FUMI or their respective subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of beneficial interests of the Company may vote. Other than the Voting Agreement attached as EXHIBIT A, there are no voting trusts, irrevocable proxies or other agreements or commitments understandings to acquire from which the Company Company, the FUMI Share Trust or any of its Subsidiariestheir respective subsidiaries is a party or is bound with respect to the voting of any Company Common Shares.
(e) The Company has filed with the SEC or previously made available to Gotham complete and correct copies of the Stock Incentive Plan and the 1999 Share Option Plan for Trustees including all amendments thereto (the "COMPANY OPTION PLANS"). The Company has previously made available to Gotham a complete and correct list setting forth as of the date hereof, or obligations the number of Company Options outstanding and the weighted average exercise price for all such outstanding Company Options.
(f) The "CONVERSION PRICE" (as such term is defined in the certificate of designations of the Company Preferred Shares, as amended or as may be amended after the date hereof) is equal to $5.0824. Since March 21, 2000, the Company has not taken any action, nor has there occurred any event or circumstance, that has changed or caused an adjustment to, or (other than in connection with the execution of its Subsidiaries this Agreement) could reasonably be expected to issuechange or cause an adjustment to, the Conversion Price. Section 6.02(f) of the Company Disclosure Schedule sets forth, as of the date hereof, the effects of any capital stockAdjustment Events (as defined in the Warrant Agreement) pertaining to the Warrants that shall be required on account of the consummation of this Agreement and the transactions contemplated hereby. In addition, voting securities Section 6.02(f) of the Company Disclosure Schedule sets forth, as of the date hereof, the current exercise price of the Warrants. Except for a violation of subsection (i)(B) of Section 6.02(c), which shall be governed solely by Section 6.02(c), the execution, delivery and performance of this Agreement by the Company and the FUMI Share Trust and the consummation of the transactions contemplated hereby shall not in any way violate or other ownership interests otherwise breach the terms of the Certificate of Designations for the Company Preferred Shares.
(g) The execution, delivery and performance of this Agreement by the Company, the FUMI Share Trust and FUMI and the consummation of the transactions contemplated hereby shall not result in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary a liquidation of the Company, .
(iiih) obligations of The FUMI Share Trust shall terminate and cease to exist immediately after the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesEffective Time.
Appears in 2 contracts
Sources: Merger Agreement (First Union Real Estate Equity & Mortgage Investments), Agreement and Plan of Merger and Contribution (Gotham Partners Lp /Ny/)
Capitalization. (a) The authorized capital stock of the Company as of the date of this Agreement consists of 200,000,000 shares 40,000,000 Class A Common Shares and 4,000,000 Class B Common Shares. The rights and privileges of Company Common Stock and 10,000,000 shares each class of Company Preferred Stockthe Company’s capital stock are as set forth in the Company’s Articles of Incorporation. At As of the close of business on July 26, 2016the business day prior to the date of this Agreement, (i) 28,746,664 shares of Company 11,388,835 Class A Common Stock Shares were issued and outstanding; , (ii) no shares of Company Preferred Stock 1,804,800 Class B Common Shares were issued and outstanding; outstanding and (iii) 4,826,402 8,239,923 Company Common Shares were held in the treasury of the Company or by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All Subsidiary of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be Company.
(when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. b) Section 4.2(a3.2(b) of the Company Disclosure Letter contains Schedule sets forth a true, correct complete and complete accurate list, as of the date hereofof this Agreement, of:
(i) all stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), indicating for each Company Stock Plan, as of such date, the number of Company Common Shares issued under such Plan, the number of Company Common Shares subject to outstanding options and other awards under such Plan, and the number of Company Common Shares reserved for future issuance under such Plan. The Company has made available to the Parent complete and accurate copies of all Company Stock AwardsPlans;
(ii) all outstanding Company Stock Options, indicating as applicable, with respect to each such Company Stock Award then outstandingOption the name of the holder thereof, the type of Company Stock Award Plan under which it was granted, the number of shares of Company Common Stock Shares subject to such Company Stock Option, the exercise price, the date of grant, and the vesting schedule. The Company has made available to the Parent complete and accurate copies of all forms of stock option agreements evidencing Company Stock Options; and
(iii) all outstanding Company Restricted Stock Awards, indicating with respect to each such Company Restricted Stock Award the name of the holder thereof, the Company Stock Plan under which it was granted, the number and class of Company Common Shares subject to such Company Restricted Stock Award, the date of grant, exercise or purchase price and expiration thereofthe vesting schedule. The Company has made available to the Parent complete and accurate copies of all forms of restricted stock agreements evidencing Company Restricted Stock Awards. To the knowledge of the Company, no Section 83(b) elections have been made with respect to any outstanding Company Restricted Stock Award.
(c) Except (i) as set forth in this Section 3.2 and (ii) as reserved for the future grants under Company Stock AwardsPlans, there are on the date hereof no outstanding (A) there are no equity securities of any class of the Company, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (B) there are no options, warrants, equity securities, calls, rights, commitments or agreements of any character to which the Company convertible into or exchangeable for its Subsidiary is a party or by which the Company or its Subsidiary is bound obligating the Company or its Subsidiary to issue, exchange, transfer, deliver or sell, or cause to be issued, exchanged, transferred, delivered or sold, additional shares of capital stock or voting securities or ownership other equity interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any security or rights convertible into or exchangeable or exercisable for any such shares or other equity interests, or obligating the Company or its Subsidiary to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. The Company does not have any outstanding stock appreciation rights, phantom stock, performance based rights or similar rights or obligations. Other than the Company Shareholder Agreement, neither the Company nor its Subsidiary, or, to the knowledge of the Company, any of the Company’s Affiliates, directors or officers, is a party to or is bound by any agreements with respect to the voting (including voting trusts and proxies) or sale or transfer (including agreements imposing transfer restrictions) of any shares of capital stock or other equity interests of the Company. For purposes of this Agreement, the term “Affiliate” when used with respect to any party shall mean any person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act of 1933, as amended (the “Securities Act”). There are no registration rights, and there is no rights agreement or “poison pill” anti-takeover plan to which the Company or its Subsidiaries Subsidiary is a party or by which it or they are bound, with respect to purchaseany equity security of any class of the Company.
(d) The holders of Class A Common Shares are not entitled to dissenters’ or appraisal rights under applicable state Law in connection with the Merger. The holders of all of the issued and outstanding Class B Common Shares have executed Company Shareholder Agreements.
(e) All outstanding Company Common Shares are, and all Company Common Shares subject to issuance as specified in Section 3.2(b) above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the RIBCA, the Company’s Articles of Incorporation or By-laws or any agreement to which the Company is a party or is otherwise bound.
(f) There are no obligations, contingent or otherwise, of the Company or its Subsidiary to repurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes Common Shares or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations its Subsidiary or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding entity, other than guarantees of bank obligations to which of the Subsidiary of the Company entered into in the ordinary course of business consistent with past practice (the “Ordinary Course of Business”).
(g) No consent of the holders of Company Stock Options or any of its Subsidiaries Company Restricted Stock Awards is a party restricting required in connection with the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesactions contemplated by Sections 2.1(b) and 6.11.
Appears in 2 contracts
Sources: Merger Agreement (Essilor International /Fi), Merger Agreement (Costa Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 100,000,000 Shares and 5,000,000 shares of preferred stock. As of January 20, 2008 there were outstanding 34,844,346 Shares (of which an aggregate of 16,150 are Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26Restricted Shares), 2016, (i) 28,746,664 shares of Company Common Stock were issued and outstanding; (ii) no shares of preferred stock, Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) Options to purchase an aggregate of 4,390,772 shares 4,895,184 Shares (of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options which options to purchase 2,576,792 shares an aggregate of 3,922,382 Shares were exercisable) and Company Common Stock, and outstanding Company RSU Awards Performance Units with respect to 1,813,980 shares of Company Stock43,104 Shares. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its All outstanding shares of capital stock. All stock of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the upon exercise of outstanding Company Stock Awards Options or vesting delivered in settlement of Company RSU Awards Performance Units will be (be, when issued in accordance with the respective terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) 4.05 of the Company Disclosure Letter Schedule contains a true, correct and complete list, as list of the date hereof, of all (i) each outstanding Company Stock AwardsOption, indicating as applicableincluding the holder, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise price, number of Shares subject thereto and the number of such Shares that have vested and (ii) all outstanding Company Restricted Shares and Company Performance Units, including with respect to each such share or purchase price unit, the holder, date of grant and expiration thereof. number vested, and such list is complete and accurate in all material respects.
(b) Except for the Company’s obligations under the Rights Agreement and the Company Rights issued pursuant thereto, except as set forth in this Section 4.05 and for changes since January 20, 2008 resulting from the exercise of Company Stock AwardsOptions outstanding on such date and the purchase of Shares pursuant to the Company ESPP in accordance with its terms as in effect on the date hereof, there are on the date hereof no outstanding (Ai) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or ownership interests in the Company, Company or (Bii) options, warrants, calls, pre-emptive rights, subscriptions, rights options or other agreements or commitments requiring rights to acquire from the Company to issueCompany, or other obligations obligation of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Companyin, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable or exercisable for capital stock or other voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), ) and (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as the “Subsidiary Company Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company). There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free Securities.
(c) Except as set forth in Section 4.05 of preemptive rights. Except for Subsidiary Securities, neither the Company nor any Disclosure Schedule, none of its Subsidiaries owns directly (i) the Shares or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwiseii) in Company Securities are owned by any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesCompany.
Appears in 2 contracts
Sources: Merger Agreement (Ventana Medical Systems Inc), Merger Agreement (Roche Holding LTD)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 Shares and 3,000,000 shares of Company Common Stock and 10,000,000 shares preferred stock, par value $0.10 per share (collectively, the “Preferred Shares”). Table of Company Preferred Stock. At Contents
(b) As of the close of business on July 2619, 20162019, (i) 28,746,664 shares of Company Common Stock 40,853,902 Shares were issued and outstanding; , (ii) no shares of Company Preferred Stock Shares were issued and outstanding; , (iii) 4,826,402 Company 4,502,058 Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved and available for future issuance pursuant to outstanding awards and rights under the Company Stock Plans and (viv) 439,000 Shares were reserved and available for future issuance under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsESPP.
(bc) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and All outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company Shares have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of (and were issued in compliance with) any preemptive or similar rights. Except , and all Shares reserved for Subsidiary Securitiesfuture issuance, neither the Company nor when issued, will be duly authorized, validly issued, fully paid, non-assessable and free of (and issued in compliance with) any of its Subsidiaries owns directly preemptive or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment similar rights.
(in the form of a loan, capital contribution or otherwised) in any Subsidiary Section 5.05(d) of the Company Disclosure Schedule contains a complete and accurate list of the number of aggregate outstanding awards of Company Stock Options (including those intended to be “incentive stock options” within the meaning of Code Section 422), Company RSUs, Company Restricted Stock and Company Performance-Based Restricted Stock as of the close of business on June 25, 2019, and the Award List to be delivered pursuant to Section 7.11 will set forth a complete and accurate list of each such outstanding award as of the close of business on the Business Day prior to the date of delivery thereof. With respect to each such award, the Company has made available to Parent a list of (i) the name of the holder of such award, (ii) the date such award was granted, (iii) the number of Shares subject to such award, (iv) with respect to any award of Company Stock Options, the price at which such Company Stock Option may be exercised, (v) a description of the vesting conditions relating to such award, including any performance-based and time-based vesting schedule and a description of any terms under any Company Employee Plan, Company Stock Plan or award agreement thereunder which provide for accelerated vesting with respect to such award as a result of the consummation of the transactions contemplated by this Agreement, and (vi) with respect to any award of Company Stock Options, the date on which such Company Stock Option expires.
(e) Other than the Company Equity Awards listed in Section 5.05(d) of the Company Disclosure Schedule or that may be issued after the date hereof as permitted under Section 7.01(c), there are no equity, equity-based or phantom equity awards outstanding under any Company Stock Plan or any other Person. Company Employee Plan.
(f) The exercise price of each Company Stock Option is not less than the fair market value of a Share on the date of grant of such Company Stock Option.
(g) There are not no outstanding bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote. Except as set forth in this Section 5.05(g) and for changes since June 25, 2019 resulting from the exercise of Company Stock Options outstanding on such date, the issuance of shares pursuant to the vesting of Company RSUs, Company Restricted Stock or Company Performance-Based Restricted Stock outstanding on such date, in each case, in accordance with the terms of the applicable Company Stock Plan, as of the date of this Agreement there are no issued, reserved for issuance or outstanding (i) shares of capital stock or other voting securities of, or ownership interests in, the Company, (ii) securities of the Company convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of, or ownership interests in, the Company, (iii) warrants, calls, options or other rights to acquire from the Company, or other obligations of the Company to which issue any capital stock or other voting securities of, or ownership interests in, or any securities convertible into or exchangeable or exercisable for capital stock or other voting securities of, or ownership interests in, the Company or any of its Subsidiaries is a party restricting the transfer (iv) restricted shares, restricted stock units, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or limiting provide economic benefits based on, directly or indirectly, the exercise value or price of any capital stock or other voting rights with respect tosecurities of, any Subsidiaries Securities.or ownership interests in, the Company (the items described in clauses (i) through Table of Contents
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sonic Financial Corp), Merger Agreement (Speedway Motorsports Inc)
Capitalization. (a) The As of May 5, 2009 (the “Company Capitalization Date”), the authorized capital stock of the Company consists consisted entirely of 200,000,000 20,000,000 shares of Company Common Stock and 10,000,000 shares Stock, of Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 which 5,567,737 shares of Company Common Stock were issued and outstanding; (ii) no outstanding and none were held in the treasury of the Company. All issued and outstanding shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by capital stock of the Company in and its treasury; (iv) an aggregate Subsidiaries are validly issued, fully paid and nonassessable. As of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock PlansCapitalization Date, there were outstanding (x) Company Stock Options representing in the aggregate the right to purchase 2,576,792 acquire 151,450 shares of Company Common Stock, and outstanding (y) Company RSU Awards with respect Restricted Shares relating to 1,813,980 shares of Company Stock. From such date until in the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all aggregate 291,144 shares of Company Common Stock that may be issued pursuant and (z) Company Restricted Stock Units relating to in the exercise aggregate 40,475 shares of outstanding Common Stock under the Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rightsPlans. Section 4.2(aSchedule 3.2(a) of to the Company Disclosure Letter contains Schedule sets forth a true, correct and complete list, as of the date hereofCompany Capitalization Date, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock AwardOptions and Restricted Stock Units (vested and unvested), the date number of grant, exercise or purchase price and expiration thereof. Except for the unvested Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights Restricted Shares or other agreements rights to purchase or commitments requiring the receive Company to issueCommon Stock, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments benefits based on the price or value of the shares of Company Common Stock. There , granted under the Company Stock Plans, the Employee Benefit Plans or otherwise, and the holders who are on the date hereof no outstanding obligations executive officers of the Company (including breakdowns by individuals for holders who are directors or any executive officers of its Subsidiaries to purchasethe Company), redeem or otherwise acquire any Company Securitiesthe dates of grant and the exercise prices thereof. There are no No bonds, debentures, notes or other indebtedness of the Company having voting rights the right to vote (or convertible into into, or exchangeable for, securities having such rightsthe right to vote) with respect to on any matters on which holders of capital stock of the Company may vote (“Company Voting Debt”) are issued or any Company Subsidiary issued and outstanding. There are no (i) voting trusts outstanding obligations of the Company or its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or other agreements equity interests of the Company or understandings any of its Subsidiaries. Except as set forth above, no shares of capital stock or other voting securities of the Company have been issued or reserved for issuance or are outstanding, other than the shares of Company Common Stock reserved for issuance under the Company Stock Plans. Except as set forth above, there are no options, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or by which any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
them is bound: (bA) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of obligating the Company or any of its Subsidiaries to issue, any capital stockdeliver or sell, voting securities or other ownership interests in (cause to be issued, delivered or securities convertible into or exchangeable for sold, additional shares of capital stock or voting securities other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other ownership interests equity interest in, the Company or any of its Subsidiaries or any Company Voting Debt; (B) any Subsidiary of the Company, (iii) obligations of obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any subscriptionsuch option, warrant, call, right, convertible security, unit, commitment, Contract, arrangement or exchangeable security undertaking; or other (C) giving any Person the right to receive any economic benefit or right similar agreement to or commitment relating derived from the economic benefits and rights accruing to any capital stock, voting securities or other ownership interests in any Subsidiary holders of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on Subsidiaries.
(b) The Company owns, directly or indirectly, all of the value issued and outstanding shares of capital stock and other equity interests of its Subsidiaries, free and clear of all liens, pledges, charges, encumbrances and other security interests of any shares nature whatsoever (collectively, “Liens”). A correct and complete list of all of the Company’s Subsidiaries, together with the jurisdiction of incorporation or organization of each Subsidiary and the percentage of each Subsidiary’s outstanding capital stock or other equity interests owned by the Company or another of its Subsidiaries, is set forth in Schedule 3.2(b)-1 to the Company Disclosure Schedule. A correct and complete list of all corporations, partnerships, limited liability companies, associations and other entities (excluding the Company’s Subsidiaries) in which the Company or any Subsidiary of the Company. There are no Company owns any joint venture, partnership, strategic alliance or similar interest, together with the jurisdiction of incorporation or organization of each such entity and the percentage of each such entity’s outstanding obligations of capital stock or other equity interests owned by the Company or any of its Subsidiaries Subsidiaries, is set forth in Schedule 3.2(b)-2 to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rightsDisclosure Schedule. Except for Subsidiary Securitiesits interest in the Subsidiaries, neither joint venture or similar entities as set forth in Schedule 3.2(b)-2 to the Company Disclosure Schedule, the Company does not own, directly or indirectly, any capital stock interest, equity membership interest, partnership interest, joint venture interest or other equity interest in any Person. Neither the Company nor any of its Subsidiaries owns directly or indirectly is obligated to make any equity interests in contribution to the capital of, make any Person, or has any obligation to acquire any such equity interests, or to provide funds loan to or make guarantee the debts of any investment joint venture or similar entity (in excluding the form Company’s wholly-owned Subsidiaries).
(c) Parent has prior to the date of this Agreement received a loan, capital contribution or otherwise) in any Subsidiary correct and complete copy of the each Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesStock Plan.
Appears in 2 contracts
Sources: Merger Agreement (Nashua Corp), Merger Agreement (Nashua Corp)
Capitalization. (a) The As of the close of business on February 29, 2024 (the “Capitalization Date”), the authorized capital stock of the Company consists consisted of 200,000,000 (i) 60,000,000 shares of Company Common Stock, of which 22,632,843 shares were issued and outstanding and no shares were held in the treasury of the Company and (ii) 10,000,000 shares of the Company’s undesignated preferred stock, par value $0.0001 per share (“Company Preferred Stock”), of which no shares were issued and outstanding. There are no other classes of capital stock of the Company authorized or issued and outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock is entitled to preemptive rights.
(b) As of the Capitalization Date, the Company has reserved 4,150,470 shares of Company Common Stock for issuance pursuant to the Company Equity Plan. As of the Capitalization Date, there were outstanding (i) Company Options to acquire 1,394,808 shares of Company Common Stock and 10,000,000 (ii) Company Warrants to acquire 9,911,397 shares of Company Preferred Common Stock. At Section 3.5(b) of the Company Disclosure Letter sets a true and complete list as of the Capitalization Date of the outstanding Company Options and Company Warrants, including, with respect to each Company Option and Company Warrant, the number of shares of Company Common Stock issuable thereunder or with respect thereto, the holder thereof and the exercise price (if any), and the Company has granted no other such awards since the Capitalization Date and prior to the date of this Agreement.
(c) From the close of business on July 26, 2016, (i) 28,746,664 shares the Capitalization Date through the date of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plansthis Agreement, there were outstanding Company Options to purchase 2,576,792 have been no issuances of shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares Preferred Stock or any other Equity Interests of Company Stock. From such date until the date hereof, neither the Company nor any other than issuances of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of Company Options, in each case, outstanding as of the Capitalization Date under the Company Stock Awards Equity Plan. Except as set forth in this Section 3.5, as of the close of business on the Capitalization Date the Company has not granted any other Equity Interests or vesting of Company RSU Awards will be (when issued in accordance with any other rights to a third party to acquire capital stock from the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rightsCompany. Section 4.2(a3.5(c) of the Company Disclosure Letter contains sets forth a true, correct true and complete list, as of the date hereofCapitalization Date, of all each outstanding Company Stock Awards, indicating as applicableOption and, with respect to each such Company Stock Award then outstandingOption, the type of Company Stock Award granted, (i) the number of shares of Company Common Stock subject to such Company Stock AwardOption, (ii) the vesting schedule thereof, including any accelerated vesting provisions, (iii) the status of the Company Option as an incentive stock option within the meaning of Section 422 of the Code, (iv) the name of the holder, (v) the date of grant, (vi) the expiration date and, (vii) the exercise or purchase price and expiration thereof. Except for Not later than five (5) Business Days prior to the Effective Time, the Company shall update Section 3.5(c) of the Company Disclosure Letter as of the date of such update and provide such updated schedule to Parent. The Company has made available true and complete copies of the Company Equity Plan, all forms of award agreements thereunder and any agreement for any award under the Company Equity Plan that does not conform in all material respects to the form agreements under the Company Equity Plan. No Company Option has been granted with a per share exercise price that is less than the fair market value of a share of Company Common Stock Awards, there are on the date hereof no outstanding (A) securities such Company Option was granted. Each Company Option was granted in accordance with the terms of the applicable Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests Equity Plan and applicable Laws. The Company has the requisite power and authority, in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring accordance with the Company Equity Plan, the applicable award agreements and any other applicable Contract, to issue, or other obligations take the actions contemplated by Section 2.4.
(d) As of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) obligations close 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based business on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchaseCapitalization Date, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness Indebtedness of the Company having voting rights the right to vote (or convertible into or exercisable for securities having such rightsthe right to vote) with respect to on any matters on which holders of capital stock of the Company may vote are issued or any Company Subsidiary issued and outstanding. There are no .
(e) As of the date of this Agreement, (i) voting trusts or other agreements or understandings to which there are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any of its Subsidiaries is a party with respect to the voting shares of capital stock of the Company or any of its subsidiaries except for purchases, redemptions or other acquisitions of capital stock or other securities (iiA) outstanding contractual required by the terms of the Company Equity Plan, (B) in order to pay Taxes or satisfy withholding obligations to provide funds to or make any investment (in respect of such Taxes in connection with awards under the form of a loan, capital contribution Company Equity Plan or otherwise, or (C) in as required by the terms of, or necessary for the administration of, any plans, arrangements or agreements existing on the date of this Agreement and set forth on Section 3.5(e) of the Company Disclosure Letter between the Company or any of its Subsidiaries in exchange for ownership of Common Stock subsidiaries and any director or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities employee of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Companysubsidiaries, (ii) optionsthere are no outstanding stock-appreciation rights, security-based performance units, restricted stockstock units, warrants, “phantom” stock or other security rights or other agreements agreements, arrangements or commitments of any character (contingent or otherwise) to acquire which the Company is a party, in each case pursuant to which any Person is entitled to receive any payment from the Company based in whole or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based part on the value of any shares of any Subsidiary capital stock of the Company. There Company (other than under the Company Equity Plan), and (iii) there are no outstanding obligations of the Company or to accelerate the vesting of any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries Equity Interests of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor under any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary provision of the Company Equity Plan or any Contract or other Person. There agreement evidencing any outstanding Company Option.
(f) Except for the Company Voting Agreements, as of the date of this Agreement, there are not no outstanding obligations to which of the Company or any of its Subsidiaries is a party (i) restricting the transfer of, or limiting (ii) affecting the exercise of voting rights of, (iii) requiring the sales, issuance, repurchase, redemption or disposition of, or containing any right of first refusal with respect to, (iv) requiring the registration for sale of or (v) granting any Subsidiaries Securitiespreemptive or anti-dilutive rights with respect to any shares of Company Common Stock, Company Preferred Stock or other Equity Interests in the Company.
Appears in 2 contracts
Sources: Merger Agreement (Akari Therapeutics PLC), Merger Agreement (Peak Bio, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (i) 100,000,000 shares of Company Common Stock and (ii) 10,000,000 shares of Company preferred stock, par value $0.01 per share (the “Preferred Stock”). At As of the close of business on July 26date hereof, 2016, (i) 28,746,664 23,255,723 shares of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares , and 4,381,632 shares of Common Stock and no Preferred Stock were held by in the Company in its Company’s treasury; (iv) an aggregate . In addition, as of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Planssuch date, there were outstanding Company Options to purchase 2,576,792 an aggregate of 4,797,774 shares of Company Common Stock, Stock and outstanding Company RSU Awards with respect to 1,813,980 shares of Company no Preferred Stock. From Since such date until the date hereofdate, neither the Company nor any of its Subsidiaries has not issued any shares of its capital stockCommon Stock or Preferred Stock other than the issuance of Common Stock upon the exercise of Options outstanding on such date, has not granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stockCommon Stock or Preferred Stock, or granted any other awards in respect of any shares of its capital stock or and has not split, combined, subdivided combined or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), Company’s capital stock have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Options, the Convertible Notes, the Purchased Call Option, the Warrants, the Rights and the Share Tracking Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Material Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities Voting Securities or ownership interests in the Company or any Subsidiary of the Companyits Material Subsidiaries, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Material Subsidiaries, or obligations of the Company or any of its Material Subsidiaries to issue, any capital stock, voting securities Voting Securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities Voting Securities or other ownership interests in) the Company or any Subsidiary of the Companyits Material Subsidiaries, (iii) obligations of the Company or any of its Material Subsidiaries 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, voting securities Voting Securities or other ownership interests in any Subsidiary of the Company or any of its Material Subsidiaries (the items in clauses (i), (ii) and (iii), together with the capital stock stock, Voting Securities and other ownership interests of such the Company or each of its Material Subsidiaries, being referred to collectively as “Subsidiary Company Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment payments directly or indirectly based (in whole or in part) on the price or value of any the shares of Common Stock or Preferred Stock. Neither the Company nor any Subsidiary of its Subsidiaries has any outstanding stock appreciation rights, phantom stock, performance-based rights or similar rights or obligations, except for the Share Tracking Awards. Except for the Company. There ’s obligation to repurchase shares of Common Stock from Toray Industries, Inc. (as disclosed in the Company SEC Reports), there are no outstanding obligations obligations, commitments or arrangements, contingent or otherwise, of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Company Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries or, to the knowledge of the Company, any other Person is a party restricting the transfer of, or limiting the exercise of voting rights with respect toto the voting of capital stock of the Company. The Company or one or more of its Subsidiaries is the holder of record and the Beneficial Owner of all the equity interests of each of the Material Subsidiaries, free and clear of any Subsidiaries SecuritiesLien, including any limitation or restriction on the right to vote, pledge or sell or otherwise dispose of such equity interests.
Appears in 2 contracts
Sources: Stock Purchase Agreement (United Therapeutics Corp), Stock Purchase Agreement (Lilly Eli & Co)
Capitalization. (a) The authorized capital stock of Private Company as of the Company date of this Agreement consists of 200,000,000 10,000,000 shares of Private Company Common Stock. Private Company Common Stock is entitled to the rights and 10,000,000 shares privileges set forth in Private Company’s certificate of Company Preferred Stockincorporation. At As of the close date of business on July 26, 2016this Agreement, (i) 28,746,664 9,100,000 shares of Private Company Common Stock were issued and outstanding; outstanding and (ii) no shares of Private Company Preferred Common Stock were issued held in the treasury of Private Company or by Subsidiaries of Private Company.
(b) Section 4.2(b) of the Private Company Disclosure Schedule sets forth a complete and outstanding; (iii) 4,826,402 Company Shares were held by accurate list, as of the Company in its treasury; (iv) an aggregate date of 4,390,772 shares this Agreement, of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares holders of Private Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares showing the number of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock, and the class or series of such shares, held by each stockholder and (for shares other than Private Company Common Stock) the number of shares of Private Company Common Stock (if any) into which such shares are convertible. All Section 4.2(b) of the outstanding Private Company Shares have beenDisclosure Schedule also sets forth a complete and accurate list of the holders of Private Company Convertible Notes, identifying such notes and all setting forth the number of shares of Private Company Common Stock into which such notes are convertible. Section 4.2(b) of the Private Company Disclosure Schedule also sets forth a complete and accurate list of all issued and outstanding shares of Private Company Common Stock that may be issued pursuant constitute restricted stock or that are otherwise subject to a repurchase or redemption right or right of first refusal in favor of Private Company, indicating the exercise name of outstanding Company Stock Awards the applicable stockholder, the vesting schedule for any such shares, including the extent to which any such repurchase or redemption right or right of first refusal has lapsed as of the date of this Agreement, whether (and to what extent) the vesting of Company RSU Awards will be (when issued accelerated in accordance with any way by the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free transactions contemplated by this Agreement or by termination of preemptive rights. Section 4.2(a) employment or change in position following consummation of the Transaction, and whether such holder has the sole power to vote and dispose of such shares.
(c) Private Company Disclosure Letter contains has made available to Public Company a true, correct complete and complete accurate list, as of the date hereof, of all Private Company Stock AwardsPlans, indicating as applicable, with respect to for each Private Company Stock Award then outstandingPlan, as of the type of Company Stock Award granteddate hereof, (i) the number of shares of Private Company Common Stock issued under such Private Company Stock Plan, (ii) the number of shares of Private Company Common Stock subject to outstanding options under such Private Company Stock AwardPlan, (iii) the date number of grant, exercise or purchase price and expiration thereof. Except shares of Private Company Common Stock reserved for the future issuance under such Private Company Stock AwardsPlan, there are on (iv) the date hereof no number of shares of Private Company Common Stock vested under such Private Company Stock Plan, (v) the number of shares of Private Company Common Stock unvested under such Private Company Stock Plan, and (vi) the average exercise price of the outstanding options under such Private Company Stock Plan. Private Company has made available to Public Company complete and accurate copies of all (A) securities of the Private Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the CompanyStock Plans, (B) forms of stock option agreements evidencing Private Company Stock Options and (C) forms of agreements evidencing any other equity or equity-linked award or compensation arrangement.
(d) Except (i) as set forth in this Section 4.2 and (ii) as reserved for future grants under Private Company Stock Plans as of the date of this Agreement, (A) there are no equity securities of any class of Private Company, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (B) there are no options, warrants, equity securities, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Private Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the by which Private Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the bound obligating Private Company or any of its Subsidiaries to issue, any exchange, transfer, deliver or sell, or cause to be issued, exchanged, transferred, delivered or sold, additional shares of capital stock, voting securities stock or other ownership equity interests in (of Private Company or securities any security or rights convertible into or exchangeable or exercisable for capital stock or voting securities any such shares or other ownership interests in) any Subsidiary of the Companyequity interests, (iii) obligations of the or obligating Private Company or any of its Subsidiaries to grant, extend extend, accelerate the vesting of, otherwise modify or amend or enter into any subscriptionsuch option, warrant, rightequity security, convertible call, right or exchangeable security agreement. Private Company does not have any outstanding stock appreciation rights, phantom stock, performance based rights or similar rights or obligations. Neither Private Company nor, to Private Company’s Knowledge, any of its Affiliates is a party to or is bound by any agreement with respect to the voting (including proxies) or sale or transfer of any shares of capital stock or other equity interests of Private Company. Except as contemplated by this Agreement or described in this Section 4.2, and except to the extent arising pursuant to applicable state takeover or similar laws, there are no registration rights, and there is no rights agreement, “poison pill” anti-takeover plan or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Private Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights by which it or they are bound with respect toto any equity security of any class of Private Company.
(e) All outstanding shares of Private Company Common Stock are, and all shares of Private Company Common Stock subject to issuance as specified in Section 4.2(c) above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, Private Company’s certificate of incorporation or bylaws or any agreement to which Private Company is a party or is otherwise bound.
(f) There are no obligations, contingent or otherwise, of Private Company or any of its Subsidiaries Securitiesto repurchase, redeem or otherwise acquire any shares of Private Company Common Stock or the capital stock of Private Company or any of its Subsidiaries.
(g) No consent of the holders of Private Company Stock Options or Private Company Warrants is required in connection with the actions contemplated by Section 1.4.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dare Bioscience, Inc.), Stock Purchase Agreement (Cerulean Pharma Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (i) 5,000,000,000 shares of Company Class A Common Stock (including any Company Restricted Shares), of which 301,078,199 shares of Company Class A Common Stock have been issued and 10,000,000 are outstanding as of the close of business on March 8, 2024 (the “Capitalization Date”), (ii) 5,000,000,000 shares of Company Class B Common Stock, none of which are issued and outstanding as of the close of business on the Capitalization Date, (iii) 5,000,000,000 shares of Company Class C Common Stock, none of which are issued and outstanding as of the close of business on the Capitalization Date, (iv) 4,983,448,411 shares of Company Class X Common Stock as of the Capitalization Date, of which 166,046,191 shares of Company Class X Common Stock have been issued and are outstanding as of the close of business on the Capitalization Date, (v) 989,681,838 shares of Company Class Y Common Stock as of the Capitalization Date, of which 225,918,741 shares of Company Class Y Common Stock have been issued and are outstanding as of the close of business on the Capitalization Date and (vi) 1,000,000,000 shares of Company Preferred Stock. At , none of which are issued or outstanding as of the close of business on July 26, 2016, (i) 28,746,664 shares of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company the Capitalization Date. No Shares were held in treasury or owned by Manager, OpCo or any Company Subsidiary as of the Company in its treasury; (iv) an aggregate close of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under business on the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stockCapitalization Date. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable nonassessable. The issued and outstanding Manager Membership Interests are free as set forth on Section 4.02(a) of the Company Disclosure Letter. Such list sets forth (i) the number and class of Manager Membership Interests outstanding as of the close of business on the Capitalization Date, and (ii) the number and class of Manager Membership Interests held by the Company and the other holders of Manager Membership Interests as of the close of business on the Capitalization Date. No Manager Membership Interests were owned by OpCo or any Company Subsidiary as of the close of business on the Capitalization Date. The Manager Membership Interests are validly issued and have not been issued in violation of, and, except as set forth in the Manager Operating Agreement are not subject to, any preemptive or subscription rights, rights of first refusal, purchase option, call option or similar rights. The issued and outstanding equity interests of OpCo as of the close of business on the Capitalization Date are as set forth on Section 4.02(a) of the Company Disclosure Letter. Such list sets forth (i) the number and class of OpCo Membership Interests outstanding as of the close of business on the Capitalization Date, (ii) the number and class of OpCo Membership Interests held by Manager and the other holders of OpCo Membership Interests as of the close of business on the Capitalization Date and (iii) for any unvested OpCo Membership Interests, any vesting criteria. No OpCo Membership Interests were owned by any Company Subsidiary as of the close of business on the Capitalization Date. The OpCo Membership Interests are validly issued and have not been issued in violation of, and, except as set forth in the OpCo Operating Agreement are not subject to, any preemptive or subscription rights, rights of first refusal, purchase option, call option or similar rights. The issued and outstanding equity interests of each Executive Holdco as of the close of business on the Capitalization Date are as set forth on Section 4.02(a) of the Company Disclosure Letter. Such list sets forth the number and the class of equity interests outstanding of such Executive Holdco and the holders thereof as of the close of business on the Capitalization Date. No equity interests of an Executive Holdco were owned by any Company Subsidiary as of the close of business on the Capitalization Date. The equity interests of each Executive Holdco are validly issued and have not been issued in violation of, and, except as set forth in the operational documents of the applicable Executive Holdco, are not subject to, any preemptive or subscription rights, rights of first refusal, purchase option, call option or similar rights.
(b) The equity interests of each Executive Holdco, the Manager Membership Interests and the OpCo Membership Interests have been granted or issued in compliance in all material respects with all applicable federal securities laws and all applicable foreign and state securities or “blue sky” laws.
(c) Except as set forth in the OpCo Operating Agreement or the Manager Operating Agreement, (i) no outstanding Share, Manager Membership Interest or OpCo Membership Interest is entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right, (ii) no outstanding Share, Manager Membership Interest or OpCo Membership Interest is subject to any right of first refusal in favor of the Company, Manager or OpCo, (iii) no outstanding bond, debenture, note or other Indebtedness of any Company Entity has a right to vote on any matter on which stockholders of the Company, members of Manager or members of OpCo have a right to vote and (iv) no Contract of any Company Entity relates to the voting or registration of, or restricts any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any Share, Manager Membership Interest or OpCo Membership Interest. The Company Entities are not under any obligation, nor are they bound by any Contract pursuant to which they may become obligated, to repurchase, redeem, or otherwise acquire any outstanding Share, Manager Membership Interest or OpCo Membership Interest. The Class A Common Stock constitutes the only outstanding class of securities of the Company registered under the Securities Act.
(d) As of the close of business on the Capitalization Date, 14,687,333 shares of Company Class A Common Stock were reserved for future issuance pursuant to awards outstanding under the Company Stock Plan, including (i) 9,566,935 shares of Company Class A Common Stock reserved for issuance pursuant to outstanding Company RSUs, (ii) 1,033,295 shares of Company Class A Common Stock reserved for issuance pursuant to outstanding Company PSUs (assuming any performance-based conditions are fully satisfied, other than as set forth in Section 4.02(d) of the Company Disclosure Letter), (iii) 4,073,339 shares of Company Class A Common Stock reserved for issuance upon exercise of Company Options and (iv) 13,764 Company Restricted Shares. The Company has made available to the Parent Entities and the Merger Subs or their respective Representatives copies of the Company Stock Plan covering Company Equity Awards outstanding and the forms of all award agreements covering material Company Equity Awards outstanding as of the date of this Agreement. Each Company Equity Award was issued in compliance in all material respects with applicable Law. Other than the OpCo Membership Interests, Manager Membership Interests and as set forth in Section 4.01(a), this Section 4.02(d) and Section 4.02(e), there is no issued, reserved for issuance, outstanding, or authorized stock option, restricted stock unit award, restricted stock award, stock appreciation, phantom stock or phantom units, profits interest, profit participation, or similar right, or equity or equity-based award with respect to a Company Entity to which a Company Entity is a party or by which a Company Entity is otherwise bound.
(e) Section 4.02(e) of the Company Disclosure Letter sets forth a complete schedule of any phantom units or similar interests that relate to such equity interests of any Company Entity as of the close of business on the Capitalization Date. Section 4.02(e) of the Company Disclosure Letter also sets forth, with respect to any phantom units or similar interests, threshold or distribution value applicable to such interests (if any), and vesting conditions (if not fully vested as of the Capitalization Date).
(f) Except for Subsidiary Securitiesthe OpCo Membership Interests, neither Manager Membership Interests and as set forth in Section 4.02(a), Section 4.02(d) or Section 4.02(e), as of the close of business on the Capitalization Date, there is no: (i) outstanding share of capital stock or other equity or ownership interest in a Company nor Entity; (ii) outstanding subscription, option, call, warrant, right (whether or not currently exercisable), agreement or commitment of any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation character to acquire any such share of capital stock or other equity interestsor membership interest, restricted stock unit, stock-based performance unit, profits interest or profits unit, or to provide funds to any other right that is linked to, or make the value of which is in any investment (in way based on or derived from the form value of any share of capital stock, membership interests or other securities of a loanCompany Entity (such as phantom interests or phantom units), in each case, issued by a Company Entity or to which a Company Entity is bound; (iii) outstanding security, instrument, bond, debenture, note or obligation that is or may become convertible into or exchangeable for any share of capital contribution stock, membership interests or otherwiseother securities of a Company Entity; or (iv) in rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which a Company Entity is or may become obligated to sell or otherwise issue any Subsidiary share of its capital stock, membership interests or any other security. None of the Company Entities or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer ofto any stockholders’ agreement, proxy, voting trust agreement or limiting the exercise registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of a Company Entity or any other Contract relating to disposition, pledges, voting rights or dividends with respect to, to any Subsidiaries Securitiesequity securities of a Company Entity.
Appears in 2 contracts
Sources: Merger Agreement (Endeavor Group Holdings, Inc.), Merger Agreement (Emanuel Ariel)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares of Company Class A Common Stock, 200,000,000 shares of Company Class B Non-Voting Common Stock and 10,000,000 50,000,000 shares of preferred stock, par value $0.01 (the “Company Preferred Stock”). As of April 30, 2017, no shares of capital stock or any other securities of Company are issued, reserved for issuance or outstanding, other than (i) 35,213,068 shares of Company Preferred Stock. At the close Class A Common Stock issued and outstanding, which number includes 301,274 shares of business on July 26, 2016Company Class A Common Stock granted in respect of outstanding Company Restricted Stock Awards, (iii) 28,746,664 16,753,429 shares of Company Class B Non-Voting Common Stock issued and outstanding, (iii) 13,039,763 shares of Company Common Stock were issued held in treasury and outstanding; (iiiv) 3,123,413 shares of Company Common Stock reserved for issuance upon the exercise of outstanding Company Stock Options. There are no shares of Company Preferred Stock were issued and or outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company Common Stock have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights, with no personal liability attaching to the ownership thereof. There are no issued or outstanding bonds, debentures, notes or other indebtedness that have the right to vote on any matters on which stockholders of Company may vote. Except as set forth in Section 3.2(a) of the Company Disclosure Schedule, as of the date of this Agreement, no trust preferred or subordinated debt securities of Company are issued or outstanding. Other than Company Stock Options issued prior to the date of this Agreement, as of the date of this Agreement, there are no outstanding subscriptions, options, warrants, puts, calls, rights, exchangeable or convertible securities or other commitments or agreements obligating Company to issue, transfer, sell, purchase, redeem or otherwise acquire any such securities.
(b) Schedule 3.2(b) of the Company Disclosure Schedule sets forth a correct and complete listing of all outstanding Company Equity Awards as of March 31, 2017 setting forth the number of shares of Company Stock subject to each Company Equity Award and the exercise price, if applicable, with respect to each Company Equity Award.
(c) There are no voting trusts, stockholder agreements, proxies or other agreements (“Voting/Transfer Agreements”) in effect pursuant to which Company or any of the Company Subsidiaries has a contractual obligation with respect to the voting or transfer of Company Common Stock or other equity interests of Company. Other than the Company Equity Awards, no equity-based awards (including any cash awards where the amount of payment is determined in whole or in part based on the price of any capital stock of Company or any of its Subsidiaries) are outstanding.
(d) Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the Company Subsidiaries, free and clear of any liens, pledges, charges, encumbrances and security interests whatsoever (“Liens”), and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable (except, with respect to Company Subsidiaries that are insured depository institutions, as provided under any provision of applicable state law comparable to 12 U.S.C. § 55) and free of preemptive rights, with no personal liability attaching to the ownership thereof. No Company Subsidiary has or is bound by any outstanding subscriptions, options, warrants, calls, rights, commitments or agreements of any character calling for the purchase or issuance of any shares of capital stock or any other equity security of such Subsidiary Securitiesor any securities representing the right to purchase or otherwise receive any shares of capital stock or any other equity security of such Subsidiary. Other than the Company Subsidiaries, neither the Company nor any of its Subsidiaries owns Company Subsidiary owns, directly or indirectly indirectly, any equity interests or ownership interest in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesperson.
Appears in 2 contracts
Sources: Merger Agreement (First Horizon National Corp), Merger Agreement (Capital Bank Financial Corp.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 30,000,000 shares of Company Common Stock, 1,000,000 shares of preferred stock, no par value, and 10,000 shares of Series A Senior Non-Cumulative Preferred Stock, no par value. As of January 17, 2020, there were (i) 14,833,079 shares of Company Common Stock issued and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26outstanding, 2016, (i) 28,746,664 which number includes 90,870 shares of Company Common Stock were issued and outstanding; granted in respect of outstanding Company Restricted Stock Awards, (ii) no shares of Company Preferred Stock were preferred stock issued and outstanding; , (iii) 4,826,402 26,423 shares of Company Shares were Common Stock held by the Company in its treasury; , (iv) an aggregate of 4,390,772 1,498,570 shares of Company Common Stock were reserved for issuance upon the exercise of outstanding Company Options, (v) 155,734 shares of Company Common Stock reserved for issuance upon the settlement of outstanding Company RSU Awards, (vi) 2,408,161 shares of Company Common Stock reserved for issuance pursuant to outstanding awards and rights future grants under the Company Stock Plans Company’s Amended and (v) under Restated 2017 Omnibus Equity Incentive Plan. As of the Company Stock Plansdate of this Agreement, there were outstanding except as set forth in the immediately preceding sentence, and for changes since January 17, 2020, resulting from the exercise, vesting or settlement of any Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding or Company RSU Awards with respect to 1,813,980 described in the immediately preceding sentence, there are no other shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has splitother voting securities of the Company issued, combined, subdivided reserved for issuance or reclassified any of its shares of capital stock. outstanding.
(b) All of the issued and outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect no personal liability attaching to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration ownership thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (that have the right to vote on any matters on which shareholders of the Company may vote. Except as set forth on Section 3.2(b) of the Company Disclosure Schedule, no trust preferred or subordinated debt securities of the Company are issued or outstanding. Other than Company Equity Awards, there are no outstanding subscriptions, options, warrants, puts, calls, rights, exchangeable or convertible into securities having such rights) with respect to or other commitments or agreements obligating the Company to issue, transfer, sell, purchase, redeem or otherwise acquire, any Company Subsidiary issued such securities, and outstanding. There there are no other equity based awards (i) voting trusts including any cash awards where the amount of payment is determined in whole or other agreements or understandings to which in part based on the price of any capital stock of the Company or any of its Subsidiaries is a party Subsidiaries) outstanding. Except for the Company Voting Agreement, there are no voting trusts, shareholder agreements, proxies or other agreements in effect with respect to the voting or transfer of the Company Common Stock or other equity interests of Company. No Subsidiary of the Company owns any shares of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsCompany.
(bc) The Company owns, directly or another indirectly, all of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the CompanyCompany Subsidiaries, free and clear of any Lien liens, pledges, charges, encumbrances and security interests whatsoever (other than Permitted “Liens”), and there are no proxies with respect to any all of such shares. There are no outstanding (i) securities of the Company shares or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or equity ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid paid, nonassessable (except, with respect to bank Subsidiaries, as provided under 12 U.S.C. § 55 or any comparable provision of applicable federal or state law) and nonassessable and are free of preemptive rights, with no personal liability attaching to the ownership thereof. Except No Company Subsidiary has or is bound by any outstanding subscriptions, options, warrants, calls, rights, commitments or agreements of any character calling for Subsidiary Securities, neither the Company nor purchase or issuance of any shares of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company stock or any other Person. There are not outstanding obligations to which the Company equity security of such Subsidiary or any securities representing the right to purchase or otherwise receive any shares of its Subsidiaries is a party restricting the transfer of, capital stock or limiting the exercise any other equity security of voting rights with respect to, any Subsidiaries Securitiessuch Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Franklin Financial Network Inc.), Merger Agreement (FB Financial Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares 40,000,000 Shares. As of Company Common Stock and 10,000,000 shares the date of Company Preferred Stock. At the close of business on July 26, 2016this Agreement, (i) 28,746,664 shares of Company Common Stock were 6,733,245 Shares are issued and outstanding; , all of which are validly issued, fully paid and nonassessable, (ii) no shares zero Shares are held in the treasury of Company Preferred Stock were issued and outstanding; the Company, (iii) 4,826,402 Company zero Shares were are held by the Company in its treasury; Subsidiaries, and (iv) an aggregate of 4,390,772 shares of Company Stock were 1,303,814 Shares are reserved for future issuance pursuant to outstanding awards Company Stock Options and other purchase rights under (the “Company Stock Awards”) granted pursuant to the Company Stock Plans and (v) under Option Plans. Except as set forth in this Section 3.03, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither or any Subsidiary or obligating the Company nor or any of its Subsidiaries has issued Subsidiary to issue or sell any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stockof, or granted other equity interests in, the Company or any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stockSubsidiary. All Section 3.03 of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to Disclosure Schedule sets forth the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, following information with respect to each Company Stock Award then outstanding, outstanding on the type date of this Agreement: (i) the name and address of the Company Stock Award recipient; (ii) the particular plan pursuant to which such Company Stock Award was granted, ; (iii) the number of shares of Company Common Stock common stock subject to such Company Stock Award, ; (iv) the date of grant, exercise or purchase price of such Company Stock Award; (v) the date on which such Company Stock Award was granted; (vi) the applicable vesting schedule; (vi) the date on which such Company Stock Award expires; (vii) the tax status (i.e., incentive stock options or non-qualified stock options) and expiration thereof(viii) whether the exercisability of or right to repurchase of such Company Stock Award will be accelerated in any way by the transactions contemplated by this Agreement. Except for No options to purchase Company common stock from the Company are outstanding other than options granted pursuant to the Company Stock AwardsOption Plans. The Company has made available to Parent accurate and complete copies of all Company Stock Option Plans. All Shares subject to issuance as aforesaid, there are upon issuance on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests terms and conditions specified in the Companyinstruments pursuant to which they are issuable, (B) optionswill be duly authorized, warrantsvalidly issued, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) fully paid and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stocknonassessable. There are on the date hereof no outstanding contractual obligations of the Company or any of its Subsidiaries Subsidiary to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company Shares or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company any Subsidiary or (ii) outstanding contractual obligations to provide funds to to, or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or in, any of its Subsidiaries in exchange for ownership of Common Stock Subsidiary or any other equity interest in person. There are no commitments or agreements of any character to which the Company or such Subsidiaryis bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Merger. All outstanding securities shares of the Company have been offered common stock, all outstanding Company Stock Options and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary have been issued and granted in compliance in all material respects with (i) all applicable securities laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(b) Each outstanding share of capital stock of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company, Company or another Subsidiary free and clear of any Lien (other than Permitted Liens)all security interests, and there are no proxies with respect to any such shares. There are no outstanding (i) securities liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company Company’s or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or Subsidiary’s voting rights, charges and other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value encumbrances of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesnature whatsoever.
Appears in 2 contracts
Sources: Merger Agreement (Bio Logic Systems Corp), Merger Agreement (Natus Medical Inc)
Capitalization. (a) The authorized capital stock As of the date hereof, the Company consists is authorized to issue up to 650,000,000 ordinary shares, each of 200,000,000 shares no par value. As of August 7, 2023 (the “Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26, 2016Capitalization Date”), (iA) 28,746,664 shares of 116,138,350 Company Common Stock Ordinary Shares were issued and outstanding; outstanding (iinot including shares held in treasury), (B) no shares of 109,627,881 Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Ordinary Shares were held by in the Company’s treasury, (C) Company in its treasury; Options covering 191,967 Company Ordinary Shares were outstanding, (ivD) an aggregate Company RSUs covering 3,921,056 Company Ordinary Shares were outstanding, (E) Company PSUs covering 368,932 Company Ordinary Shares were outstanding (assuming achievement of 4,390,772 shares of the applicable performance goals at the target level), and (F) 4,138,694 Company Stock Ordinary Shares were reserved for issuance but not yet granted pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stockEquity Plan. All of the outstanding Company Ordinary Shares have beenare, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (Ordinary Shares reserved for issuance as described above shall be, when issued in accordance with the respective terms thereof), duly authorized and authorized, validly issued and are issued, fully paid and nonassessable and are free of preemptive rights. .
(b) Section 4.2(a3.2(b) of the Company Disclosure Letter contains sets forth a true, correct true and complete list, as of the date hereofCompany Capitalization Date, of all (i) each Company Stock AwardsEquity Award, indicating as applicable(ii) the name or employee identification number of the Company Equity Award holder, (iii) the number of Company Ordinary Shares underlying each Company Equity Award (assuming that applicable performance metrics in respect of the Company PSUs are achieved at “target” levels), (iv) the date on which the Company Equity Award was granted, (v) the ordinary vesting schedule with respect to the Company Equity Award, (vi) the exercise price of each Company Stock Award then outstandingOption, and (vii) the type expiration date of each Company Stock Award grantedOption.
(c) Except as set forth in Section 3.2(a) and Section 3.2(b), and other than the number Company Ordinary Shares that have become outstanding after the Company Capitalization Date that were reserved for issuance under the Company Equity Plan and issued in accordance with the terms of shares of the Company Common Stock subject to such Equity Plan and applicable Company Stock Equity Award, in each case in effect as of the date of grant, exercise or purchase price and expiration thereof. Except for hereof: (i) the Company Stock Awards, does not have any ordinary shares or other equity or equity-based interests issued or outstanding and (ii) there are on the date hereof no outstanding subscriptions, options, phantom equity rights, share appreciation, restricted share unit awards, warrants, puts, calls, exchangeable or convertible securities or other similar rights or agreements or any other Contract to which the Company or any Company Subsidiary is a party or is otherwise bound obligating the Company or any Company Subsidiary (other than transactions solely among wholly owned Company Subsidiaries and/or the Company) to (A) securities issue, transfer or sell, or make any payment with respect to, any ordinary shares or other equity interests of the Company or any Company Subsidiary or securities convertible into or into, exchangeable for or exercisable for such shares of capital stock or voting securities or ownership interests in the Companyequity interests, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) obligations of the Company to grant, extend or enter into any such subscription, option, warrant, rightput, call, exchangeable or convertible or exchangeable security securities or other similar right or agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any ordinary shares or other equity interests. Except as set forth in Section 3.2(a) and Section 3.2(b), and other than the Company Securities. There Ordinary Shares that have become outstanding after the Company Capitalization Date that were reserved for issuance under the Company Equity Plan and issued in accordance with the terms of the Company Equity Plan and applicable Company Equity Award, in each case in effect as of the date hereof, there are no bondsoutstanding subscriptions, debenturesoptions, notes phantom equity rights, share appreciation, restricted share unit awards, warrants, puts, calls, exchangeable or convertible securities or other indebtedness having voting similar rights (or convertible into securities having such rights) with respect agreements or any other Contract to which the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts is a party or other agreements or understandings to which is otherwise bound obligating the Company or any of its Company Subsidiary (other than transactions solely among wholly owned Company Subsidiaries is a party with respect and/or the Company) to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwisesimilar form) in the any Company Subsidiary that is not wholly owned or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the CompanyPerson. There are no outstanding obligations of the Company nor, except as would not reasonably be expected to have, individually or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form aggregate, a Company Material Adverse Effect, any Company Subsidiary (other than in respect of a loan, capital contribution or otherwisetransactions solely among wholly owned Company Subsidiaries and/or the Company) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party (1) restricting the transfer of, (2) affecting the voting rights of, (3) requiring the repurchase, redemption or limiting disposition of, or containing any right of first refusal, right of first offer or similar right with respect to, (4) requiring the exercise registration for sale of voting or (5) granting any preemptive or anti-dilutive rights with respect to, any Subsidiaries Securitiesordinary shares or other equity interests of the Company or any Company Subsidiary.
(d) Neither the Company nor any Company Subsidiary has outstanding bonds, debentures, notes or other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the Company Shareholders on any matter.
Appears in 2 contracts
Sources: Merger Agreement (Tapestry, Inc.), Agreement and Plan of Merger (Capri Holdings LTD)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 100,000,000 shares of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26April 23, 20162019, (i) 28,746,664 48,969,728 shares of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 329,895 shares of Company Shares Common Stock were held by the Company in its treasury; (iv) an aggregate of 4,390,772 2,193,852 shares of Company Common Stock were reserved available for future issuance pursuant to outstanding awards and rights under the Company Stock Plans Plans, and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 3,586,505 shares of Company Common Stock and outstanding Company Restricted Stock Awards with respect to 622,431 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date April 23, 2019 until the date hereof, neither other than shares of Company Common Stock issued pursuant to the exercise of Company Options, the Company nor any of its Subsidiaries has not issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or otherwise entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock stock, or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding shares of Company Shares Common Stock have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards Options or vesting of Company RSU Restricted Stock Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are issued, fully paid and paid, nonassessable and are free of preemptive rights. .
(b) Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grantgrant and, for each Company Option, the exercise or purchase price and expiration date thereof. .
(c) Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or stock, voting securities or other ownership interests in the Company, (B) options, warrants, calls, pre-emptive preemptive rights, subscriptions, warrants, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock common stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(bd) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not no outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Subsidiary Securities.
Appears in 2 contracts
Sources: Merger Agreement (Elanco Animal Health Inc), Merger Agreement (Aratana Therapeutics, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares (i) 150,000,000 Company Class A Shares, of Company Common Stock and 10,000,000 shares which, as of Company Preferred Stock. At the close of business on July 26November 1, 20162019 (the “Capitalization Date”), there were 33,983,093 Company Class A Shares outstanding (i) 28,746,664 shares of including 954,067 Company Common Class A Shares underlying Company Restricted Stock were issued Awards and outstanding; excluding 0 Company Shares held in treasury), (ii) 30,000,00 Company Class B Shares, of which, as of the Capitalization Date, there were 4,817,394 Company Class B Shares issued and outstanding and (iii) 10,000,000 shares of preferred stock, par value $0.01 per share, of the Company (the “Company Preferred Stock”), of which, as of the Capitalization Date, no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 . No Company Subsidiary owns any Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options or has any option or warrant to purchase 2,576,792 shares of any Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants Shares or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards Equity Interest in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stockthe Company. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights. Section 4.2(a.
(b) As of the close of business on the Capitalization Date, the Company Disclosure Letter contains a truehas no Company Shares or shares of Company Preferred Stock subject to or reserved for issuance, correct and complete list, as of the date hereof, of all except for (i) 545,590 Company Class A Shares subject to outstanding Company Stock AwardsOptions under the Company Equity Plans, indicating as applicable, (ii) 463,728 Company Class A Shares subject to outstanding Company PSU Awards (assuming vesting at target performance levels with respect to each Company Stock PSU Award then outstandingthat is subject to performance-based vesting), (iii) 316,283 Company Class A Shares reserved for future issuance under the Company Equity Plans for awards not yet granted and (iv) 1,907,550 Company Class B Shares issuable upon the exercise of the Class B Warrant. All Company Shares subject to issuance under the Company Equity Plans and the Class B Warrant, upon issuance prior to the Effective Time on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights.
(c) As of the close of business on the Capitalization Date, other than the Company Equity Awards, the type of Company Stock Award granted, Class B Warrant and the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for preemptive rights set forth in the Company Stock AwardsCharter, there are on the date hereof no outstanding (A) securities of the Company convertible into Equity Interests or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) other options, warrants, calls, pre-emptive warrants or other rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares any Equity Interests of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary or obligating the Company or any Company Subsidiary to issue, acquire or sell any Equity Interests of the Company or any Company Subsidiary. Since the close of business on the Capitalization Date, the Company has not issued any Company Shares, Company Equity Awards or other Equity Interests (including shares of Company Preferred Stock) other than Company Shares issued upon the exercise or settlement of Company Equity Awards outstanding as of the close of business on the Capitalization Date in accordance with their terms.
(d) Other than the Company Equity Awards, the Class B Warrant and outstandingthe preemptive rights set forth in the Company Charter, there are no obligations (whether outstanding or authorized) of the Company or any Company Subsidiary requiring the redemption or repurchase of, or containing any right of first refusal with respect to, or granting any preemptive rights with respect to, any Company Shares or other Equity Interests of the Company or any Company Subsidiary. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries Company Subsidiary is a party with respect to the voting of capital stock Company Shares or other Equity Interests of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loanCompany Subsidiary, capital contribution or otherwise) in other than any such agreements solely between and among the Company and any Company Subsidiary or any of its Subsidiaries in exchange for ownership of Common Stock solely between and among two or any other equity interest in the more Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such sharesSubsidiaries. There are no outstanding bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Company Shares may vote.
(e) Section 3.2(e) of the Company Disclosure Letter sets forth, as of the close of business on the Capitalization Date, all Indebtedness of the Company and the Company Subsidiaries, excluding any Indebtedness with an outstanding principal amount as of the date hereof of less than two million dollars ($2,000,000) individually (provided, that all such excluded Indebtedness has an aggregate outstanding principal amount as of the date hereof of less than ten million dollars ($10,000,000)). From the close of business on the Capitalization Date to the date hereof, the Company has not incurred any Indebtedness that would be required to be set forth on Section 3.2(e) of the Company Disclosure Letter if such Indebtedness was incurred prior to the close of business on the Capitalization Date. “Indebtedness” means, with respect any Person: (i) securities (A) the amount of the Company or indebtedness of such Person for borrowed money and (B) indebtedness of such Person evidenced by any of its Subsidiaries convertible into or exchangeable for shares of capital stock note, bond, debenture or other voting securities debt security, in the case of clauses (A) and (B), whether incurred, assigned, granted or ownership interests in any Subsidiary unsecured (which, for the avoidance of the Companydoubt, shall not include accounts payable, accrued liabilities or “earn-outs”); (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company such Person with respect to interest rate and currency swap arrangements and any other arrangements designed to protect against fluctuations in interest or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, currency rates payable upon termination thereof; and (iii) reimbursement obligations of such Person with respect to any performance bonds, bank overdrafts, letters of credit and similar charges (to the Company or any extent drawn) (which, for the avoidance of its Subsidiaries to grantdoubt, extend or enter into any subscriptionshall not include customer deposits, warrant, right, convertible or exchangeable security or “earn-outs,” escrow and other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (icontingent payment obligations), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (William Lyon Homes), Merger Agreement (Taylor Morrison Home Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 300,000 shares of Company Common Stock, of which 280,000 shares are designated as Voting Company Common Stock and 20,000 shares are designated as Non-Voting Company Common Stock, and 200,000 shares of preferred stock. As of March 27, 2025, there were (i) 64,230.0724 shares of Company Common Stock issued and 10,000,000 outstanding, of which 60,854.0724 shares of Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 shares of were Voting Company Common Stock and 3,376 shares were issued and outstandingNon-Voting Company Common Stock; (ii) no shares of Company Preferred Common Stock were issued and outstandingheld in treasury; (iii) 4,826,402 13.33 shares of Company Shares were held by Common Stock reserved for issuance upon the settlement of outstanding Company in its treasuryRSU Awards, 121.40 shares are reserved for issuance upon the settlement of outstanding incentive unit awards (assuming performance goals are satisfied at target level); (iv) an aggregate of 4,390,772 2,049.80 shares of Company Common Stock were reserved for issuance pursuant to outstanding awards and rights future grants under the Company Stock Plans Equity Plans; and (v) under no shares of preferred stock issued and outstanding. As of the date of this Agreement, except as set forth in the immediately preceding sentence, and for changes since March 27, 2025 resulting from the exercise, vesting or settlement of any Company Stock PlansRSU Awards described in the immediately preceding sentence, there were outstanding Company Options to purchase 2,576,792 no shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has splitother voting securities or equity interests of Company issued, combined, subdivided reserved for issuance or reclassified any of its shares of capital stockoutstanding. All of the issued and outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), have been duly authorized and validly issued and are fully paid paid, nonassessable (except as provided under 12 U.S.C. § 55 or comparable state law (as applicable)) and nonassessable and are free of preemptive rights, with no personal liability attaching to the ownership thereof. Other than as set forth on Section 4.2(a3.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock AwardsSchedule, there are on the date hereof no outstanding (A) trust preferred or subordinated debt securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price Company Subsidiary issued or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securitiesoutstanding. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect that have the right to vote on any matters on which shareholders of Company may vote. Other than Company RSU Awards, as of the Company or any Company Subsidiary issued and outstanding. There date of this Agreement there are no (i) voting trusts outstanding subscriptions, options, warrants, stock appreciation rights, phantom units, scrip, rights to subscribe to, preemptive rights, anti-dilutive rights, or other rights of first refusal or similar rights, puts, calls, commitments or agreements or understandings of any character to which the Company or any of its Subsidiaries is a party with respect to the voting relating to, or securities or rights convertible or exchangeable into or exercisable for, or valued by reference to, shares of capital stock or other voting or equity securities of or ownership interest in Company, or contracts, commitments, understandings or arrangements by which Company may become bound to issue additional shares of its capital stock or other equity or voting securities of or ownership interests in Company, or that otherwise obligate Company to issue, transfer, sell, purchase, redeem or otherwise acquire, any of the foregoing (collectively, “Company Securities,” and any of the foregoing in respect of Company Subsidiaries, collectively, “Company Subsidiary Securities”). Other than Company RSU Awards, no equity-based awards (including any cash awards where the amount of payment is determined, in whole or in part, based on the price of any capital stock of Company or any of its Subsidiaries) are outstanding as of the date of this Agreement. Other than the Existing Shareholders Agreement and as set forth on Section 3.2(a) of the Company Disclosure Schedule, there are no voting trusts, shareholder agreements, proxies or (ii) outstanding contractual obligations other agreements in effect to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the which Company or any of its Subsidiaries in exchange for is a party or bound with respect to the voting or transfer of Company Common Stock, capital stock or other voting or equity securities or ownership interests of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsgranting any shareholder or other person any registration rights.
(b) The Company owns, directly or another of its Subsidiaries is the record and beneficial owner of indirectly, all the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the CompanyCompany Subsidiaries, free and clear of any Lien liens, claims, title defects, mortgages, pledges, charges, encumbrances and security interests whatsoever (other than Permitted “Liens”), and there are no proxies with respect to any all such shares. There are no outstanding (i) securities of the Company shares or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or equity ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid paid, nonassessable (except, with respect to any Subsidiaries that are depository institutions, as provided under 12 U.S.C. § 55 or comparable state law (as applicable)) and nonassessable and are free of preemptive rights, with no personal liability attaching to the ownership thereof. Except for No Company Subsidiary Securities, neither the Company nor owns any capital stock of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesCompany.
Appears in 2 contracts
Sources: Merger Agreement (HomeStreet, Inc.), Merger Agreement (HomeStreet, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 100,000,000 shares of Company Common Stock and 10,000,000 5,000,000 shares of preferred stock, par value $.01 per share (the “Company Preferred Stock”), of which 500,000 shares have been designated Series A Junior Participating Preferred Stock (the “Company Series A Preferred Stock”). At the close As of business on July 26January 4, 20162007, (i) 28,746,664 28,098,172 shares of Company Common Stock were issued and outstanding; outstanding (iiincluding 197,329 shares of unvested Company Restricted Stock issued under the Stock Plans). As of the date of this Agreement, (i) there are no shares of Company Preferred Stock were issued and outstanding; outstanding or held in treasury, (ii) 500,000 shares of the Company Series A Preferred Stock have been reserved for issuance in accordance with the Rights Agreement dated as of August 12, 2004, between the Company and the Bank of New York, as Rights Agent (as amended, the “Company Rights Agreement”), and (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 362,877 shares of Company Common Stock were are reserved for issuance pursuant to outstanding awards and rights in respect of future grants under the Company Stock Plans and (v) under the Company Stock Plans. As of January 4, 2007, there were are outstanding Company Options to purchase 2,576,792 an aggregate of 1,698,434 shares of Company Common Stock and Company Awards covering 41,882 shares of Company Common Stock. Since January 4, and outstanding Company RSU Awards with respect to 1,813,980 2007, (i) no shares of Company Common Stock have been issued, except pursuant to Company Options and Company Awards outstanding on January 4, 2007, and (ii) no Company Options or Company Awards have been granted. Neither the Company nor any of its Subsidiaries directly or indirectly owns any shares of Company Common Stock. From such date until No bonds, debentures, notes or other indebtedness having the date hereofright to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which stockholders of the Company may vote are issued or outstanding. All issued and outstanding shares of the Company’s capital stock are, and all shares that may be issued or granted pursuant to the exercise of Company Options or upon the vesting of Company Awards will be, when issued or granted in accordance with the respective terms thereof, duly authorized, validly issued, fully paid and non-assessable and free of preemptive rights, with no personal liability attaching to the ownership thereof. The issuance and sale of all of the shares of capital stock described in this Section 3.2 have been in compliance with United States federal and state securities Laws. Except as may be provided in the Company Rights Agreement, neither the Company nor any of its Subsidiaries has issued agreed to register any shares securities under the Securities Act of its capital stock1933, has granted any optionsas amended (together with the rules and regulations thereunder, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stockthe “Securities Act”), or under any state securities Law or granted registration rights to any other awards in respect of any shares of its capital stock individual or has splitentity. Except for the Company Options, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, Awards and all shares of the Company Common Series A Preferred Stock that may be purchase rights (the “Company Rights”) issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete listRights Agreement, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awardsthis Agreement, there are on the date hereof no outstanding or authorized (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (Bx) options, warrants, calls, pre-emptive preemptive rights, subscriptions, rights calls or other agreements rights, convertible securities, agreements, claims or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by character obligating the Company or any of its Subsidiaries to make issue, transfer or sell any payments based on the price or value of the shares of capital stock or other equity interest in the Company Common Stock. There are on the date hereof no outstanding or any of its Subsidiaries or securities convertible into or exchangeable for such shares or equity interests, (y) contractual obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to capital stock of the Company or any Company Subsidiary issued and outstanding. There are no of its Subsidiaries or any such securities or agreements listed in clause (ix) of this sentence, or (z) voting trusts or other similar agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of the capital stock of the Company or any of its Subsidiaries. The Company has previously provided to Parent true and correct information with respect to each Company Option and Company Award outstanding as of the date of this Agreement including: (i) the name of the holder, (ii) the number of shares of Company Common Stock issuable thereunder or upon exercise thereof, and (iii) with respect to each Company Option, the exercise price per share of Company Common Stock. Immediately after the consummation of the Mergers, there will not be any outstanding contractual obligations to provide funds to subscriptions, options, warrants, calls, preemptive rights, subscriptions, or make other rights, convertible or exchangeable securities, agreements, claims or commitments of any investment (in the form of a loan, capital contribution or otherwise) in character by which the Company or any of its Subsidiaries in exchange will be bound calling for ownership the purchase or issuance of Common Stock any shares of the capital stock of the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or any other equity interest in the Company such securities or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsagreements.
(bi) The Company or another All of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock (or equivalent equity interests of entities other than corporations) of each Subsidiary of the Company’s Subsidiaries are owned, directly or indirectly, by the Company free and clear of any Lien (Liens, other than Permitted Liensstatutory Liens for Taxes not yet due and payable and such restrictions as may exist under applicable Law, and other than Liens granted pursuant to the Amended and Restated Credit Agreement, dated as of November 30, 2005, as amended, among the Company and the lenders party thereto (the “Company Credit Agreement”), and there all such shares or other ownership interests have been duly authorized, validly issued and are fully paid and non-assessable and free of preemptive rights, with no proxies personal liability attaching to the ownership thereof, and (ii) neither the Company nor any of its Subsidiaries owns any shares of capital stock or other securities of, or interest in, any other Person, except for the securities of the Subsidiaries of the Company, or is obligated to make any capital contribution to or other investment in any other Person except in the ordinary course of business pursuant to operating joint venture agreements.
(c) Except for the Company Credit Agreement and the Indenture dated as of June 10, 2003, between the Company and The Bank of New York, as trustee, with respect to any such shares. There are the 7% Senior Subordinated Notes due 2013 (the “Company Indenture”), no outstanding (i) securities indebtedness of the Company or any of its Subsidiaries convertible into or exchangeable for shares contains any restriction (other than customary notice provisions) upon (i) the prepayment of capital stock or other voting securities or ownership interests in any Subsidiary indebtedness of the CompanyCompany or any of its Subsidiaries, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the incurrence of indebtedness by the Company or any of its Subsidiaries, or obligations (iii) the ability of the Company or any of its Subsidiaries to issue, grant any capital stock, voting securities Lien on the properties or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations assets of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 2 contracts
Sources: Merger Agreement (Forest Oil Corp), Merger Agreement (Houston Exploration Co)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 100,000,000 Company Common Shares and 50,000,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, par value $0.001 per share (the “Company Preferred Stock). At the close As of business on July April 26, 2016, 2006 (i) 28,746,664 shares of 10,516,600 Company Common Stock Shares were issued and outstanding; , (ii) no shares of the Company Preferred Stock were issued and outstanding; , (iii) 4,826,402 1,045,000 Company Common Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were have been authorized and reserved for issuance pursuant to outstanding awards and rights under any employer stock option or compensation plan or arrangement of the Company (the “Company Stock Plans Option Plans”), (iv) 80,000 qualified or nonqualified options to purchase Company Common Shares (the “Company Stock Options”) were outstanding and (v) under Warrants to acquire 233,000 Company Common Shares were outstanding. A complete list of all the Company Stock PlansOption Plans is set forth in Section 4.3(a) of the Company Disclosure Schedule. As of the date of this Agreement, there were the Company had no Company Common Shares outstanding Company Options to purchase 2,576,792 or reserved for issuance other than as described above. All such issued and outstanding shares of capital stock of the Company Common Stockare, and outstanding all shares thereof which may be issued prior to the Closing Date will be, when issued, duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights.
(b) Except as set forth in Section 4.3(b) of the Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereofDisclosure Schedule, neither the Company nor any of its Subsidiaries Company Subsidiary has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights obligations the holders of which have the right to vote (or which are convertible into or exercisable for securities having such rightsthe right to vote) with respect to the stockholders of the Company on any matter.
(c) Except as set forth in this Section 4.3 or in Section 4.3(c) of the Company Disclosure Schedule and except for (i) the Company Stock Options, (ii) long term incentive awards set forth in Section 4.3(e) of the Company Disclosure Schedule or (iii) out performance plan awards set forth in Section 4.3(e) of the Company Disclosure Schedule, as of the date of this Agreement, there are not any outstanding securities or any options, warrants, calls, subscriptions, convertible securities, or other rights, agreements or commitments which obligate the Company or any Company Subsidiary to issue, transfer, sell or repurchase, redeem or otherwise acquire any securities of the Company or any Company Subsidiary. Section 4.3(c) of the Company Disclosure Schedule sets forth a true, complete and correct list of the Company Stock Options, including the name of the Person to whom such Company Stock Options have been granted, the number of shares subject to each Company Option and the per share exercise price for each Company Option. True and complete copies of all instruments (or the forms of such instruments) referred to in this Section 4.3(c) have been furnished or made available to Eagles.
(d) Section 4.3(d) of the Company Disclosure Schedule sets forth a true, complete and correct list of all restricted stock awards granted under the Company Stock Option Plans, including the name of the Person to whom such restricted stock awards have been granted and the number of shares included in each restricted stock award. True and complete copies of all instruments (or the forms of such instruments) referred to in this Section 4.3(d) have been furnished or made available to Eagles. The Company has not issued and outstanding. There any stock appreciation rights.
(e) Except as set forth in Section 4.3(e) of the Company Disclosure Schedule, there are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries Company Subsidiary is a party with respect to the voting of any shares of capital stock of the Company or which restrict the transfer of any such shares, nor does the Company have knowledge of any third party agreements or understandings with respect to the voting of any such shares or which restrict the transfer of any such shares.
(iif) Except as set forth in Section 4.3(f) of the Company Disclosure Schedule, there are no outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any Company Subsidiary to issue, repurchase, redeem or otherwise acquire any shares of its Subsidiaries in exchange for ownership of Common Stock capital stock, partnership interests or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests Company Subsidiary.
(g) Except as set forth in any Subsidiary of the Company, (iiSection 4.3(g) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary SecuritiesDisclosure Schedule, neither the Company nor any of its Subsidiaries owns directly or indirectly Company Subsidiary is under any equity interests in any Personobligation, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution contingent or otherwise) in , by reason of any Subsidiary agreement to register the offer and sale or resale of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting their securities under the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesSecurities Act.
Appears in 2 contracts
Sources: Merger Agreement (Sunset Financial Resources Inc), Agreement and Plan of Merger (Sunset Financial Resources Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (i) 100,000,000 shares of Company Common Stock and 10,000,000 (ii) 5,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”). The rights and privileges of the Company Common Stock and the Company Preferred Stock are as set forth in the Company’s Restated Certificate of Incorporation. At the close of business on July 26October 30, 20162015, (i) 28,746,664 shares of Company Common Stock 31,844,970 Shares were issued and outstanding; , (ii) Company Stock Options to purchase an aggregate of 4,002,294 Shares were issued and outstanding, (iii) Company RSUs in respect of an aggregate of 1,288,600 Shares were issued and outstanding and (iv) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to . All outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All stock of the outstanding Company Shares have been, and all shares of Company Common Stock Shares that may be issued pursuant to the exercise of outstanding any Company Stock Awards or vesting of Company RSU Awards Plan will be (be, when issued in accordance with the respective terms thereof), duly authorized and validly issued and are (or, in the case of shares that have not yet been issued, will be) fully paid and paid, nonassessable and are free of preemptive rights. .
(b) Section 4.2(a4.06(b)(i) of the Company Disclosure Letter contains Schedules sets forth, as of the close of business on October 30, 2015, a truecomplete and correct list of (i) all outstanding Company Stock Options, correct including the number of shares subject to such award, the name of the holder, the grant date, the vesting schedule, the expiration date thereof and complete listthe exercise or purchase price per share and (ii) all outstanding Company RSUs, including the name of the holder, the vesting schedule, and the grant date. The Company stock plans set forth on Section 4.06(b)(ii) of the Company Disclosure Schedules (the “Company Stock Plans”) are the only plans or programs the Company or any of the Company Subsidiaries maintains under which stock options, restricted stock, restricted stock units, stock appreciation rights or other compensatory equity and equity-based awards are outstanding and no such awards other than Company Stock Options and Company RSUs were granted under the Company Stock Plans or otherwise. With respect to each grant of Company Stock Options, (i) each such grant was made in accordance with the terms of the applicable Company Stock Plan and Applicable Law (including rules of Nasdaq), (ii) each such grant was properly accounted for in accordance with GAAP and all Applicable Laws in the Company SEC Documents (including financial statements), and (iii) each Company Stock Option has an exercise price per share of Company Common Stock equal to or greater than the fair market value of a share of the Company Common Stock on the date of such grant. The Company has Made Available each form of award agreement under the Company Stock Plans, as well as copies of any award agreement, including those which have performance conditions, under the Company Stock Plans that deviates materially from any such form of award agreement.
(c) Except as set forth in this Section 4.06, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awardsthis Agreement, there are on the date hereof no outstanding (Ai) shares of capital stock or voting securities of the Company, (ii) securities of the Company or the Company Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company or ownership interests in any of the CompanyCompany Subsidiaries, (Biii) options, warrants, calls, pre-emptive rights, subscriptions, warrants or other rights or other agreements or commitments requiring arrangements to acquire from the Company to issueor any of the Company Subsidiaries, or other obligations or commitments of the Company or any of the Company Subsidiaries to issue, any capital stock, stock or other voting securities or other ownership interests in (in, or any securities convertible into or exchangeable for capital stock or other voting securities or other ownership interests in) , the Company (or, in each case, the economic equivalent thereof), (C) obligations or any of the Company to grantSubsidiaries, extend (iv) restricted shares, restricted stock units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or enter into similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any subscriptioncapital stock of, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in in, the Company or any of the Company Subsidiaries (the items in clauses (A), (Bi)-(iv) and (C), together with the capital stock of the Company, being referred to collectively as the “Company Securities”), (v) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchasevoting trusts, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes proxies or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other similar agreements or understandings to which the Company or any of its the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is bound with respect to the voting of any shares of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities lawsSubsidiaries, including or (vi) contractual obligations or commitments of any character restricting the Securities Act and “blue sky” laws.
(b) The Company transfer of, or another of its Subsidiaries is requiring the record and beneficial owner of all the issued and outstanding registration for sale of, any shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements Company Subsidiaries. There are no outstanding obligations or commitments to acquire from the Company or of any of its Subsidiaries, or obligations character of the Company or any of its the Company Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares Company Securities or any of the capital stock of the Company Subsidiaries (other than withholding for Taxes in the ordinary course for settlements of Company RSUs). No Company Subsidiary owns any Company Securities.
(d) Since January 1, 2015, the Company has not declared or paid any dividend, or declared or made any distribution on, or authorized the creation or issuance of, or issued (other than issuances resulting from the exercise of Company Stock Options, issuances under the Company ESPP, or settlements of Company RSUs), or authorized or effected any split-up or any other recapitalization of, any Company Securities, or directly or indirectly redeemed, purchased or otherwise acquired any Company Securities. Other than the Company Common Stock, there are no outstanding bonds, debentures, notes or other indebtedness or securities of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securitieshaving the right to vote (or, neither other than the outstanding Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any PersonStock Options, convertible into, or has exchangeable for, securities having the right to vote) on any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary matters on which stockholders of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesmay vote.
Appears in 2 contracts
Sources: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)
Capitalization. (a) The As of the date hereof, the authorized capital stock of the Company consists of 200,000,000 shares of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 7,500,000 shares of common stock, $0.01 par value per share ("Company Common Stock were Stock"), of which 3,450,825 shares are issued and outstanding and 952,978 shares are held as treasury shares; and (ii) 1,000,000 shares of preferred stock, $0.01 par value per share, none of which are issued and outstanding; (ii) no , but 7,500 shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were which are reserved for issuance pursuant to outstanding awards the terms and rights under conditions of the Rights Agreement dated July 28, 1997, between Company Stock Plans and ▇▇▇▇▇▇ Trust and Savings Bank, as Rights Agent (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock"Rights Agreement"). All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary Company Common Stock have been duly and validly authorized and issued, and are fully paid and non-assessable. None of the Company, free and clear outstanding shares of Company Common Stock has been issued in violation of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities preemptive rights of the Company current or any past stockholders of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of Company Common Stock have been issued in compliance with all federal and state securities laws.
(b) As of the date hereof, Company has reserved 30,903 shares of Company Common Stock for issuance under various stock option and stock incentive plans disclosed in Disclosure Schedule 4.05 of the Disclosure Schedule of Company for the benefit of the employees, directors, former employees and former directors of Company (collectively, the "Company Stock Option Plan") pursuant to which options covering 551,952 shares of Company Common Stock (each, a "Company Stock Option") are outstanding and unexercised as of the date hereof. As of the date hereof, 1,107 shares of Company Common Stock are issued and outstanding under Company's Bank Incentive Plan disclosed in Disclosure Schedule 4.05 of the Disclosure Schedule of Company. Except as set forth in the Rights Agreement and in this Section 4.05, there are no shares of capital stock or other equity securities of Company outstanding and no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, shares of the capital stock of the Subsidiaries of the Company, or contracts, commitments, understandings, or arrangements by which Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any is or may be bound to issue additional shares of its Subsidiaries owns directly capital stock or indirectly any equity interests in any Personoptions, warrants, or has any obligation rights to purchase or acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any additional shares of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiescapital stock.
Appears in 2 contracts
Sources: Merger Agreement (First Midwest Bancorp Inc), Merger Agreement (Covest Bancshares Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 80,000,000 shares of common stock, par value $1.00 per share (the “Company Common Stock Stock”), and 10,000,000 shares of Company Preferred Stockpreferred stock, par value $1.00 per share. At As of the close of business on July 26March 27, 20162007, (i) 28,746,664 30,644,228 shares of Company Common Stock were issued and outstanding; , (ii) no shares of preferred stock of the Company Preferred were issued and outstanding, (iii) Company Stock Options to purchase an aggregate of 708,061 shares of Company Common Stock were issued and outstanding; outstanding (iii) 4,826,402 of which Company Shares Stock Options to purchase an aggregate of 659,063 shares of Company Common Stock were held by the Company in its treasury; exercisable), (iv) 24,751 shares of phantom stock were issued and outstanding, (v) 48,400 restricted stock units were issued and outstanding and (vi) 157,850 shares of Company Common Stock were issuable pursuant to the terms of restricted stock grants. As of December 31, 2006 an aggregate of 4,390,772 2,782,879 shares of Company Common Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were . All outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares Stock have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding any Company Stock Awards or vesting of Company RSU Awards Plan will be (be, when issued in accordance with the respective terms thereof), duly authorized and validly issued and are (or, in the case of shares that have not yet been issued, will be) fully paid and paid, nonassessable and are free of preemptive rights. No shares of Company Common Stock are owned by any Subsidiary or Affiliate of the Company.
(b) Section 4.2(a3.5(b) of the Company Disclosure Letter contains a true, correct and complete listSchedule sets forth, as of the date hereofclose of business on March 27, 2007, a complete and correct list of all outstanding Company Stock AwardsOptions, indicating as applicable, including with respect to each Company Stock Award then outstanding, the type of Company Stock Award grantedsuch option, the number of shares of Company Common Stock subject to such option, the name of the holder, the grant date and the exercise price per share. The Company Stock Award, the date Plans set forth on Section 3.5(b) of grant, exercise or purchase price and expiration thereof. Except for the Company Disclosure Schedule are the only plans or programs the Company or any of its Subsidiaries maintains under which stock options, restricted shares, restricted share units, stock appreciation rights, performance shares or other compensatory equity-based awards have been granted and remain outstanding or may be granted. All Company Stock AwardsOptions may, by their terms, be treated in accordance with Section 2.6.
(c) Except as set forth in this Section 3.5 and for changes since March 27, 2007 resulting from the exercise of Company Stock Options outstanding on that date, there are on the date hereof no outstanding (Ai) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in of the Company, (Biii) options, warrants, calls, pre-emptive rights, subscriptions, warrants or other rights or other agreements or commitments requiring arrangements to acquire from the Company to issueCompany, or other obligations or commitments of the Company to issue, any capital stock, stock or other voting securities or other ownership interests in (in, or any securities convertible into or exchangeable for capital stock or other voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof)Company, (Civ) obligations of restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the Company to grantvalue or price of, extend or enter into any subscriptioncapital stock of, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in in, the Company (the items in clauses (A), (Bi)-(iv) and (C), together with the capital stock of the Company, being referred to collectively as the “Company Securities”), (v) voting trusts, proxies or (D) obligations other similar agreements or understandings to which Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound with respect to make the voting of any payments based on the price or value shares of capital stock of the Company or any of its Subsidiaries, (vi) obligations or commitments of any character restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company Common Stock. There are on the date hereof no outstanding or any of its Subsidiaries, or (vii) obligations or commitments of any character of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any of the Company Securities. Neither the Company nor any of its Subsidiaries is a party to any voting agreement with respect to the voting of any Company Securities.
(d) There are no outstanding bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any the holders of its Subsidiaries which have the right to issue, any capital stock, voting securities or other ownership interests in vote (or securities convertible into into, or exercisable or exchangeable for capital stock or voting for, securities or other ownership interests inhaving the right to vote) on any Subsidiary of matter on which the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities’s stockholders may vote.
Appears in 2 contracts
Sources: Merger Agreement (Lone Star Technologies Inc), Merger Agreement (United States Steel Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 15,000,000 Shares, and 1,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, $0.01 par value per share (“Company Preferred Stock”). At The rights and privileges of each class of the close Company’s capital stock are as set forth in the Company’s certificate of business on July 26incorporation. As of February 7, 2016, 2007: (i) 28,746,664 shares of Company Common Stock 5,588,556 Shares were issued and outstanding; , (ii) no Shares were held in the treasury of the Company or by Subsidiaries of the Company, and (iii) no shares of the Company Preferred Stock were issued and or outstanding; .
(iiib) 4,826,402 Company Shares were held by Section 4.2(b) of the Company in its treasury; (iv) an aggregate Disclosure Schedule lists the number of 4,390,772 shares of Company Stock were Shares reserved for future issuance pursuant to stock options granted and outstanding awards as of the date of this Agreement and rights the plans or other arrangements under which such options were granted (collectively, the “Company Stock Plans Plans”) and sets forth a complete and accurate list of (vi) all holders of outstanding options to purchase Shares (such outstanding options, the “Company Stock Options”), whether or not granted under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and (ii) all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awardspersons holding unvested Shares, indicating as applicable, with respect to each Company Stock Award then outstandingOption and each unvested Share, the type of Company Stock Award grantedas applicable, the number of shares of Company Common Stock Shares subject to such Company Stock AwardOption, the relationship of the holder to the Company, and the exercise or purchase price, the date of grantgrant or issuance, exercise the repurchase price payable per unvested Share, length of the repurchase period following the holder’s termination of service, vesting schedule and the expiration date thereof, including the extent to which any vesting has occurred as of the date of this Agreement, and whether (and to what extent) the vesting of such Company Stock Options or purchase price and expiration thereof. Except for such Shares will be accelerated in any way by the transactions contemplated by this Agreement or upon termination of employment or service with the Company Stock Awardsor the surviving Corporation, there are on the date hereof no outstanding (A) securities Buyer or any Subsidiary of the Company convertible into following the Merger or exchangeable otherwise. The Company has provided to the Buyer accurate and complete copies of all Company Stock Plans, and the forms of all stock option agreements evidencing Company Stock Options, and there are no agreements, understandings or commitments to amend, modify or supplement such documents.
(c) Except (x) as set forth in this Section 4.2, and (y) as reserved for shares of capital stock or voting securities or ownership interests in the Companyfuture grants under Company Stock Plans, (Bi) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations there are no equity securities of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations class of the Company or any of its Subsidiaries to purchase(other than equity securities of any such Subsidiary that are directly or indirectly owned by the Company), redeem or otherwise acquire any Company Securities. There security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (ii) there are no bondsoptions, debentureswarrants, notes equity securities, calls, rights, commitments or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or agreements of any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings character to which the Company or any of its Subsidiaries is a party with respect or by which the Company or any of its Subsidiaries is bound obligating the Company or any of its Subsidiaries to issue, exchange, transfer, deliver or sell, or cause to be issued, exchanged, transferred, delivered or sold, additional shares of capital stock or other equity interests of the voting Company or any of its Subsidiaries or any security or rights convertible into or exchangeable or exercisable for any such shares or other equity interests, or obligating the Company or any of its Subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. Neither the Company nor any of its Subsidiaries has outstanding any stock appreciation rights, phantom stock, performance-based rights or similar rights or obligations. There are no obligations, contingent or otherwise, of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of the capital stock of the Company or (ii) outstanding contractual obligations any of its Subsidiaries or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any Subsidiary of its Subsidiaries in exchange for ownership of Common Stock the Company or any other equity interest in the Company or such Subsidiary. All outstanding securities entity, other than guarantees of bank obligations of Subsidiaries of the Company have been offered and issued entered into in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Ordinary Course of Business. Neither the Company or another nor any of its Subsidiaries Affiliates is a party to or is bound by any, and to the record Knowledge of the Company, there are no, agreements or understandings with respect to the voting (including voting trusts and beneficial owner proxies) or sale or transfer (including agreements imposing transfer restrictions) of all the issued and outstanding any shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (or other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities equity interests of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company registration rights, and there is no rights agreement, “poison pill” anti-takeover plan or any of its Subsidiaries to purchase, redeem other agreement or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations understanding to which the Company or any of its Subsidiaries is a party restricting or by which it or they are bound with respect to any equity security of any class of the transfer Company or any of its Subsidiaries or with respect to any equity security, partnership interest or similar ownership interest of any class of any of its Subsidiaries. Table of Contents Agreement and Plan of Merger – Page 13
(d) Shareholders of the Company are not entitled to dissenters’ or appraisal rights under applicable state Law in connection with the Merger.
(e) All outstanding Shares are, and all Shares subject to issuance as specified in Section 4.2(b) above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any Encumbrance, purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the NJBCA, the Company’s certificate of incorporation or by-laws or any agreement to which the Company is a party or is otherwise bound.
(f) All of the outstanding shares of the Capital Stock of each of the Company’s Subsidiaries are validly issued, fully paid and nonassessable and are owned, directly or indirectly by the Company free and clear of any Encumbrances, and none of such outstanding shares of capital stock have been issued in violation of any preemptive or similar right, purchase option, call or right of first refusal. There are no outstanding options, warrants, calls, stock appreciation rights, or other rights or commitments or any other agreements of any character relating to the sale, issuance or voting of, or limiting the exercise granting of voting rights to acquire any shares of the capital stock of any of the Company’s Subsidiaries, or any securities or other instruments convertible into, exchangeable for or evidencing the right to purchase any shares of the capital stock of any of the Company’s Subsidiaries.
(g) All Company Stock Options and all issued and outstanding Shares have been issued in compliance with respect tothe Securities Act and any applicable state blue sky Laws. Any consents of the holders of Company Stock Options which are required in connection with the actions contemplated by Section 7.8 have been obtained, and such actions so contemplated comport with the requirements of the documents underlying any Subsidiaries Securities.such derivative securities. Table of Contents
Appears in 2 contracts
Sources: Merger Agreement (Mikron Infrared Inc), Merger Agreement (Mikron Infrared Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 100,000,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, par value $.001 per share (“Company Preferred Stock”). At the close of business on July January 26, 20162011, (i) 28,746,664 67,402,815 shares of Company Common Stock were issued and outstanding; , (ii) no shares of Company Common Stock were held by the Company in its treasury, (iii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; , (iv) an aggregate of 4,390,772 2,030,268 shares of Company Common Stock were reserved for issuance pursuant subject to outstanding awards and rights under the Company Stock Plans and (v) Options granted under the Company Stock Plans, there (v) 3,168,437 were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither unvested Restricted Shares granted under the Company nor any of its Subsidiaries has issued any shares of its capital stockStock Plans, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all (vi) 9,660,534 shares of Company Common Stock that may be issued pursuant to were reserved for issuance under the Convertible Notes and (vii) 2,014,750 shares of Company Common Stock were reserved for issuance upon exercise of outstanding the Company Stock Awards or vesting Warrants. All of Company RSU Awards will be (when issued in accordance with the terms thereof), Shares have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights. None of the Subsidiaries of the Company beneficially own any shares of Company Common Stock.
(b) Included in Section 4.2(a3.2(b) of the Company Disclosure Letter contains Schedule is a true, complete and correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to (i) each Company Stock Award then outstanding, the type of Company Stock Award grantedoutstanding Option, the number of shares of Company Common Stock subject thereto, the grant date, the expiration date, the exercise price, the vesting schedule thereof, and the name of the holder thereof, and (ii) each outstanding Restricted Share, the grant date, the vesting schedule thereof, and the name of the holder thereof. All shares of Company Common Stock subject to such issuance under the Company Stock AwardPlans, upon issuance prior to the Effective Time on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. Each Option and each Restricted Share award has been granted pursuant to the Company’s form of stock option agreement and form of restricted stock award agreement, respectively, true, complete and correct copies of which have been made available to Parent in the VDR. All Options have an exercise price equal to no less than the fair market value of the underlying shares of Company Common Stock on the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding .
(Ac) securities Included in Section 3.2(c) of the Company Disclosure Schedule is a true, complete and correct list, as of the date hereof, of each outstanding Company Warrant, the grant dates, expiration dates, exercise price and vesting schedules thereof and the names of the holders thereof. All shares of Company Common Stock subject to issuance under the Company Warrants, upon issuance prior to the Effective Time on the terms and conditions specified in Company Warrants, will be duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. All outstanding Company Warrants have been granted pursuant to the forms of warrant agreements identified on Section 3.2(c) of the Company Disclosure Schedule, true, complete and correct copies of which have been made available to Parent in the VDR.
(d) Since the Balance Sheet Date, the Company has not issued any shares of its capital stock, voting securities or equity interests, or any securities convertible into or exchangeable or exercisable for any shares of its capital stock, voting securities or equity interests, other than pursuant to the outstanding Options, Restricted Shares, Company Warrants, Convertible Notes or as otherwise expressly permitted by this Agreement.
(e) Except (i) as set forth in this Section 3.2 or (ii) as otherwise expressly permitted by Section 5.1 hereof, as of the date of this Agreement there are not, and as of the Effective Time there will not be, any shares of capital stock or stock, voting securities or ownership equity interests in of the CompanyCompany issued and outstanding or any subscriptions, (B) options, warrants, calls, pre-emptive convertible or exchangeable securities, rights, subscriptions, rights commitments or other agreements or commitments requiring of any character providing for the Company to issue, or other obligations issuance of the Company to issue, any shares of capital stock, voting securities or other ownership equity interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred including any representing the right to collectively as “Company Securities”) purchase or (D) obligations by the Company or otherwise receive any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations None of the Company or any of its Subsidiaries to purchasehas issued or is bound by any outstanding subscriptions, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights calls, convertible or other exchangeable securities, rights, commitments or agreements of any character providing for the issuance or commitments to acquire from the Company or disposition of any shares of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership equity interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securitiesstock, neither the Company nor any of its Subsidiaries owns directly voting securities or indirectly any equity interests in (or any Personoptions, warrants or has any obligation other rights to acquire any such shares of capital stock, voting securities or equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any of its Subsidiaries.
(f) Except for the Convertible Notes, there are no issued or outstanding bonds, debentures, notes or other Person. There are not outstanding obligations to which indebtedness of the Company or any of its Subsidiaries is a party restricting having the transfer ofright to vote (or convertible into, or limiting exchangeable for, securities having the exercise right to vote), upon the happening of voting rights with respect toa certain event or otherwise, on any matters on which the equity holders of the Company or any of its Subsidiaries Securitiesmay vote.
Appears in 2 contracts
Sources: Merger Agreement (Verizon Communications Inc), Merger Agreement (Terremark Worldwide Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 100,000,000 shares of Company Class A Common Stock, par value $0.01 per share, 15,000,000 shares of Company Class B Common Stock, par value $0.01 per share, and 10,000,000 shares of preferred stock, par value $0.00 per share. As of the business day immediately prior to the date of this Agreement, no shares of capital stock or other Equity Interests of Company are issued, reserved for issuance or outstanding, other than (i) 8,888,801 shares of Company Class A Common Stock issued and outstanding, which number excludes 264,240 shares of Company Class A Common Stock reserved for issuance upon the settlement of outstanding Company Restricted Stock Unit Awards (of which 264,240 shares of Company Class A Common Stock are subject to Company Restricted Stock Unit Awards subject to a specified level of performance, assuming maximum performance), (ii) 264,240 shares of Company Class A Common Stock authorized in respect of outstanding Company Restricted Stock Unit Awards assuming maximum performance, (iii) 0 shares of Company Common Stock and 10,000,000 held in treasury, (iv) 799,965 shares of Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 shares of Company Class A Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to upon the exercise of outstanding Company Stock Awards or vesting Options, and (v) 14,951,625 shares of Company RSU Awards Class B Common Stock, all of which will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) cancelled as a result of the Exchanges pursuant to the Exchange Agreements. There are no dividend equivalents accrued or unpaid on the Company Disclosure Letter contains a true, correct and complete listEquity Awards as of the date of this Agreement. Company has not issued any Equity Interests of Company since the business day immediately prior to the date of this Agreement through the date hereof and, as of the date hereof, none of all Company Stock AwardsCompany’s shares of preferred stock, indicating as applicablepar value $0.00 per share, with respect to each Company Stock Award then are issued or outstanding, . All the type of Company Stock Award granted, the number of issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, issued in compliance with applicable Law and are fully paid, nonassessable and not subject to, or issued in violation of, any preemptive or similar contractual rights. No bonds, debentures, notes or other Indebtedness that have the right to such vote on any matters on which stockholders of Company Stock Award, the date of grant, exercise may vote are issued or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company or which is convertible into or exchangeable for shares for, Equity Interests having such rights). Other than the Company Equity Awards, the LLC Units and the LLC Options, in each case, issued prior to the date of capital stock or voting securities or ownership interests in the Companythis Agreement, (B) there are not outstanding any options, warrants, convertible securities, subscription rights, conversion rights, exchange rights, phantom stock or units, restricted equity, equity appreciation rights, puts, calls, pre-emptive rightsredemptions, subscriptionsrepurchase or other rights or agreements, rights arrangements or commitment of any kind that obligate Company or any Subsidiary thereof to issue, transfer dispose of, redeem, repurchase, acquire or sell any Equity Interests, or make payments based on the value of any Company Common Stock.
(b) Except for the Support Agreement, the Exchange Agreements, the Second Amended and Restated Limited Liability Company Agreement of Holdings, dated as of November 26, 2014 (the “LLC Agreement”), by and among Holdings, Wayzata Opportunities Fund II, L.P., Wayzata Opportunities Fund Offshore II, L.P. and Company, and the Tax Receivable Agreement, dated November 26, 2014, by and among Company, Wayzata Opportunities Fund II, L.P., Wayzata Opportunities Fund Offshore II, L.P., the several holders of LLC Options, the Management Representative and other members of Holdings from time to time a party thereto (the “TRA”), there are no voting trusts, stockholder agreements, proxies or other agreements in effect pursuant to which Company or commitments any of its Subsidiaries has a contractual or other obligation with respect to the voting or transfer of the Company Common Stock, any other Equity Interests of Company or any Company Subsidiary Securities. There are no outstanding Contracts or obligations requiring Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Company Common Stock, other Equity Interests of Company or any Company Subsidiary Securities, except in connection with the vesting or exercise of a Company Equity Award.
(c) Section 3.2(c) of the Company Disclosure Schedule sets forth a true, correct and complete list of all Company Equity Awards and LLC Options outstanding as of the date hereof specifying, on a holder-by-holder basis, (i) the name of each holder, (ii) the number of shares or LLC Units subject to each such Company Equity Award or LLC Option, as applicable, (iii) the grant date of each such Company Equity Award or LLC Option, as applicable, (iv) the plan under which each such Company Equity Award or LLC Option, as applicable, was granted, (v) the exercise price for each LLC Option and each such Company Equity Award that is a Company Stock Option, (vi) the vesting schedule applicable to each such LLC Option and Company Equity Award (including whether the vesting will be accelerated by the execution of this Agreement or the consummation of the Merger), and (vii) the expiration date of each LLC Option and each such Company Equity Award that is a Company Stock Option. Each Company Option is exempt from the requirements of Code Section 409A.
(d) As of the date hereof, there are 23,840,426 LLC Units outstanding, which number excludes 757,937 LLC Options. 14,951,625 LLC Units are exchangeable on a one-to-one basis for shares of Company Class A Common Stock in accordance with and subject to the terms of the LLC Agreement. Except as set forth on Section 3.2(d) of the Company Disclosure Schedule, there are not outstanding (i) any other Equity Interests of any Subsidiary of Company, (ii) securities of any Subsidiary of Company that are convertible into or exchangeable for, at any time, Equity Interests of any Subsidiary of Company, (iii) any options, warrants, convertible securities, subscription rights, conversion rights, exchange rights, phantom stock or units, restricted equity, equity appreciation rights, puts, calls, redemptions, repurchase or other rights or agreements, arrangements or commitment of any kind that obligate any Subsidiary of Company to issue, transfer dispose of, redeem, repurchase, acquire or sell, or make payments based on the value of, any other Equity Interests of any Subsidiary of Company or (iv) any obligations of the any Subsidiary of Company to issue, any capital stock, voting securities or other ownership interests in (Equity Interests or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) obligations Equity Interests 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), ) through (ii) and (iiiiv), together with the capital stock outstanding Equity Interests of such Subsidiaries, being referred to collectively as “Company Subsidiary Securities”). Except as set forth on Section 3.2(d) or (iv) obligations of the Company Disclosure Schedule, Company owns, directly or any of its Subsidiaries to make any payment based on indirectly, all the value issued and outstanding Company Subsidiary Securities free and clear of any shares of any Liens, and all such Company Subsidiary of the Company. There Securities are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of not subject to, or issued in violation of, any preemptive or similar contractual rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwiseas set forth on Section 3.2(d) in any Subsidiary of the Company Disclosure Schedule, no Subsidiary of Company has or is bound by any outstanding subscriptions, options, warrants, calls, rights, commitments or agreements of any character calling for the purchase or issuance of any Company Subsidiary Securities or any securities representing the right to purchase or otherwise receive any Company Subsidiary Securities. No bonds, debentures, notes or other Person. There Indebtedness that have the right to vote on any matters on which holders of Company Subsidiary Securities may vote are not issued or outstanding obligations to (or which is convertible into or exchangeable for, Company Subsidiary Securities having such rights).
(e) Except as set forth on Section 3.2(e) of the Company Disclosure Schedules, as of the date hereof, none of Company or any of its Subsidiaries has any Indebtedness. Company and its Subsidiaries have not made any payments in connection with or pursuant to the TRA or, in the past twelve (12) months, the LLC Agreement.
(f) Company does not have a “poison pill” or similar stockholder rights plan that is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesin effect.
Appears in 2 contracts
Sources: Merger Agreement (Neff Corp), Merger Agreement (H&E Equipment Services, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (i) 40,000,000 shares of Company Common Stock and 10,000,000 (ii) 5,000,000 shares of preferred stock, par value $1.00 per share (the “Company Preferred Stock”). The rights and privileges of the Company Common Stock and the Company Preferred Stock are as set forth in the Company’s Restated Certificate of Incorporation, as filed with the Delaware Secretary on December 30, 1986 (as amended). At the close of business on July 26November 23, 20162020 (the “Capitalization Date”), there were (i) 28,746,664 shares of Company Common Stock were 24,522,534 Shares issued and outstanding, (ii) 3,291,238 Shares issued and held in treasury; (iiiii) 330,000 Company Restricted Stock Units, each granted under the Company Stock Plans, issued and outstanding, of which none are subject to performance vesting, and (iv) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were outstanding or held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to . All outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All stock of the outstanding Company Shares have been, and all shares of Company Common Stock Shares that may be issued pursuant to the exercise of outstanding any Company Stock Awards or vesting of Company RSU Awards Plan will be (be, when issued in accordance with the respective terms thereof), duly authorized and validly issued and are (or, in the case of shares that have not yet been issued, will be) fully paid and paid, nonassessable and are free of preemptive preemptive, anti-dilutive or similar rights. No Subsidiary of the Company owns any shares of capital stock of the Company. As of the Capitalization Date, 920,000 Shares were reserved for issuance pursuant to the Company Stock Plans.
(b) The Company has Made Available to Parent, as of the Capitalization Date, a complete and correct list of all outstanding Company Restricted Stock Units, including the number of shares of capital stock subject to such award, the name or employee identification number of the holder thereof, the grant date and vesting schedule. The Company stock plans set forth on Section 4.2(a4.6(b) of the Company Disclosure Letter contains a true, correct and complete list, as (the “Company Stock Plans”) are the only plans or programs the Company or any of the date hereofCompany Subsidiaries maintains under which stock options, of all restricted stock, restricted stock units, stock appreciation rights or other compensatory equity and equity-based awards are outstanding and no awards other than Company Restricted Stock Units have been granted under the Company Stock Awards, indicating as applicable, with Plans or otherwise. With respect to each grant of a Company Equity Award, (i) each such grant was made in accordance with the terms of the applicable Company Stock Award then outstanding, Plan and Applicable Law and (ii) each such grant was properly accounted for in accordance with GAAP in the type Company SEC Documents (including financial statements) and all other Applicable Laws.
(c) Except as set forth in this Section 4.6 and for changes since the Capitalization Date resulting from the exercise or settlement of Company Stock Award granted, the number of shares of Company Common Stock subject to Equity Awards outstanding on such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awardsdate, there are on the date hereof no outstanding (Ai) securities of the Company convertible into or exchangeable for shares of capital stock or other voting securities of or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its the Company Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the CompanyCompany or any of the Company Subsidiaries, (iiiii) options, restricted stock, warrants, calls or other rights or other agreements or commitments arrangements to acquire from the Company or any of its the Company Subsidiaries, or other obligations or commitments of the Company or any of its the Company Subsidiaries to issue, any capital stock, stock or other voting securities or other ownership interests in (in, or any securities convertible into or exchangeable for capital stock or other voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries to grantthe Company Subsidiaries, extend (iv) restricted shares, restricted stock units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or enter into similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any subscriptioncapital stock of, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in in, the Company or any Subsidiary of the Company Subsidiaries (the items in clauses (i), (iii)-(iv) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as the “Subsidiary Company Securities”), (v) voting agreements, voting trusts, stockholders’ agreements, proxies or (iv) obligations of the Company other agreements or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations understanding to which the Company or any of its the Company Subsidiaries is a party with respect to the voting of the capital stock or other equity interest of, restricting the transfer of, or limiting the exercise of voting providing for registration rights with respect to, the Company or any of the Company Subsidiaries or (vi) contractual obligations or commitments of any character (whether contingent or otherwise) restricting the transfer of, or requiring the registration for sale of, granting any preemptive or anti-dilution rights with respect to or requiring the repurchase, redemption, disposition or acquisition, or containing any right of first refusal with respect to any shares of capital stock or Indebtedness of the Company or any of the Company Subsidiaries. There are no outstanding obligations or commitments of any character of the Company or any of the Company Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Securities or any of the capital stock of the Company Subsidiaries. All Company Restricted Stock Units may, by their terms, be treated in accordance with Section 2.8. No Company Subsidiary owns any Company Securities.
(d) Other than the Company Common Stock, there are no outstanding bonds, debentures, notes or other indebtedness or securities of the Company having the right to vote on any matters on which stockholders of the Company may vote.
Appears in 2 contracts
Sources: Merger Agreement (Goldfield Corp), Merger Agreement (Goldfield Corp)
Capitalization. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 200,000,000 50,000,000 shares of Class A Common Stock, par value $0.05 per share, and 100,000,000 shares of Class B Common Stock, par value $0.05 per share. The Company Common Stock is entitled to the rights and 10,000,000 shares privileges set forth in the Company’s articles of Company Preferred Stockincorporation. At As of the close of business on July 26, 2016Capitalization Date, (i) 28,746,664 36,407,670 shares of Company Common Stock were issued and outstanding; outstanding (not including shares held in treasury), (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all 6,615,462 shares of Company Common Stock that may be issued were held in treasury, (iii) 908,145 shares of Company Common Stock were underlying outstanding Company RSUs, and (iv) 286,410 shares of Company Common Stock were underlying outstanding Company PSUs.
(b) The Company has made available to the Parent complete and accurate (i) copies of the Company Stock Plan and details regarding the number of shares of Company Common Stock reserved for future issuance under such Company Stock Plan, (ii) forms of agreements evidencing Company RSUs, (iii) forms of agreements evidencing Company PSUs, and (iv) forms of agreements evidencing any other equity or equity-linked award or compensation arrangement. All outstanding Company equity-based awards have been granted pursuant to, and in compliance with, the Company Stock Plan, and all Company RSUs and Company PSUs have been granted pursuant to one of the forms made available pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof)foregoing sentence, duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rightswithout any material deviation therefrom. Section 4.2(a2.2(b) of the Company Disclosure Letter contains Schedule sets forth a true, correct and complete list, as of the date hereofCapitalization Date, of all each outstanding Company Stock AwardsRSU and Company PSU, indicating as applicableincluding (A) the name of the holder thereof, with respect to each Company Stock Award then outstanding, (B) the type of Company Stock Award granted, the total number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof)that may be issued pursuant thereto, (C) obligations of the Company to grantapplicable grant date thereof, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchasevesting conditions thereof (including, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company PSUs, whether the award is a Company RTSR or any a Company Subsidiary issued EPS/PSU) and outstanding(E) the dollar amount of accrued dividend equivalents thereon. There are no outstanding awards of Company “restricted stock”.
(ic) voting trusts Except as set forth in Section 2.2(a) and for changes since the Capitalization Date resulting from the settlement of Company RSUs and Company PSUs outstanding on such date in accordance with their respective terms, as of the date hereof, (A) there are no equity securities of any class of the Company, or other any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (B) there are no options, warrants, equity securities, calls, rights, commitments or agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in by which the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of bound obligating the Company or any of its Subsidiaries to issue, any exchange, transfer, deliver or sell, or cause to be issued, exchanged, transferred, delivered or sold, additional shares of capital stock, voting securities stock or other ownership equity or equity-based interests in (of the Company or securities any security or rights convertible into or exchangeable or exercisable for capital stock or voting securities any such shares or other ownership equity interests in) any Subsidiary or other cash or property that is based on the value of the Companyshares, (iii) obligations of or obligating the Company or any of its Subsidiaries to grant, extend extend, accelerate the vesting of, otherwise modify or amend or enter into any subscriptionsuch option, warrant, equity security, phantom equity, call, right, convertible commitment or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in any Subsidiary agreement. None of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly has any outstanding stock appreciation rights, phantom stock, performance based rights or indirectly similar rights or obligations. None of the Company, any of its Subsidiaries or any of its Affiliates is a party to or is bound by any agreement with respect to the voting (including proxies) or sale or transfer of any shares of capital stock or other equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company Company. Except to the extent arising pursuant to applicable state takeover or any similar laws, there are no registration rights, and there is no rights agreement, “poison pill” anti-takeover plan or other Person. There are not outstanding obligations similar agreement to which the Company or any of its Subsidiaries is a party restricting or by which it or they are bound with respect to any equity security of any class of the transfer ofCompany. No Subsidiary of the Company owns any Company Common Stock.
(d) All outstanding shares of Company Common Stock are, and all shares of Company Common Stock subject to issuance as specified in Section 2.2(b) above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the Act, the Company’s articles of incorporation or bylaws or any agreement to which the Company is a party or is otherwise bound.
(e) There are no obligations, contingent or otherwise, of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire, or limiting the exercise of voting rights with respect toto register, any Subsidiaries Securitiesshares of Company Common Stock or the capital stock of the Company or any of its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Kimball International Inc), Merger Agreement (Kimball International Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 10,000,000 shares of stock, par value $0.001 per share, of which 7,500,000 shares have been designated as common stock and 2,500,000 shares have been designated as preferred stock, of which 2,000,000 shares have been designated as 10.00% Series B Cumulative Preferred Stock, par value $0.001 per share. As of the close of business on April 30, 2019 (the “Capitalization Date”), there were 2,576,219 shares of Company Common Stock outstanding and 597,139 shares of Series B Preferred outstanding. As of the close of business on the Capitalization Date, no shares of Company Common Stock or Series B Preferred were reserved or to be made available for issuance, except as set forth in Section 4.2(a) of the Company Disclosure Schedule. All of the issued and outstanding shares of Company Common Stock and 10,000,000 shares of Company Series B Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 shares of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights, with no personal liability attaching to the ownership thereof. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete listSchedule sets forth, as of the date of this Agreement: (i) all outstanding awards under the Company’s stock plans, equity incentive plans and similar arrangements set forth in Section 4.2(a) of the Company Disclosure Schedule (collectively, and in each case as the same may be amended to the date hereof, of all the “Company Stock AwardsPlans”), indicating as applicableand (ii) any outstanding subscriptions, with respect to each options, warrants, calls, commitments or agreements of any character which the Company Stock Award then outstandinghas or by which the Company is bound calling for the purchase, the type sale, repurchase, redemption or issuance of any shares of Company Stock Award grantedCommon Stock, Series B Preferred, any other equity securities of the Company, any Voting Debt (defined below), any phantom equity or similar rights or any securities representing the right to purchase or otherwise receive any shares of the Company capital stock (including any rights plan or agreement). Section 4.2(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of the aggregate number of shares of Company Common Stock issuable upon the exercise of each stock option or subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for each restricted stock award granted under the Company Stock AwardsPlans that was outstanding as of the Capitalization Date, there are on the date hereof no exercise price for each such stock option and any other material terms applicable to such equity awards of the Company. All outstanding (A) shares of Company Securities, all outstanding options to purchase any securities of the Company convertible into or exchangeable for and Company Restricted Shares, and all outstanding shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities securities, or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock Subsidiary of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued or granted, as applicable, in compliance in all material respects with all applicable securities laws. Since the Capitalization Date, including the Securities Act Company has not (i) issued or repurchased any shares of its capital stock or any securities convertible into or exercisable for any shares of its capital stock, other than upon the exercise of employee stock options granted prior to such date and disclosed in Section 4.2(a) of the Company Disclosure Schedule or pursuant to the surrender of shares to the Company or the withholding of shares by the Company to cover tax withholding obligations under the Company Stock Plans, or (ii) issued or awarded any options, restricted shares or other equity-based awards under the Company Stock Plans. No bonds, debentures, notes, or other indebtedness issued by the Company or any of its Subsidiaries: (i) having the right to vote on any matters on which shareholders or equityholders of the Company or any of its Subsidiaries may vote (or which is convertible into, or exchangeable for, securities having such right); or (ii) the value of which is directly based upon or derived from the capital stock, voting securities, or other ownership interests of the Company or any of its Subsidiaries, are issued or outstanding (collectively, “blue sky” lawsVoting Debt”).
(b) The Section 4.2(b) of the Company or another Disclosure Schedule lists the name, jurisdiction of organization, authorized and outstanding shares of capital stock and record and beneficial owners of such capital stock for each Subsidiary of the Company. Except as set forth in Section 4.2(b) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is own, directly or indirectly, any equity or similar interest in, or any interest convertible into or exchangeable for, any equity or similar interest in, any corporation, partnership, joint venture or other similar business association or entity (other than its wholly owned Subsidiaries). Except as set forth in Section 4.2(b) of the record and beneficial owner Company Disclosure Schedule, the Company owns, directly or indirectly, all of all the issued and outstanding shares of capital stock of or all other equity interests in each Subsidiary of the Company, ’s Subsidiaries free and clear of any Lien liens, charges, encumbrances, adverse rights or claims and security interests whatsoever (other than Permitted “Liens”), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock all of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights, with no personal liability attaching to the ownership thereof. Except for Subsidiary Securities, neither Neither the Company nor any of its Subsidiaries owns directly has or indirectly is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase, repurchase, sale, redemption or issuance of any shares of capital stock, any other equity interests in security, any PersonVoting Debt, any phantom equity or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form similar rights of a loan, capital contribution or otherwise) in any Subsidiary of the Company Company, or any securities representing the right to purchase or otherwise receive any shares of capital stock or any other Personequity security of any such Subsidiary. There are not outstanding obligations to which Except as set forth in Section 4.2(b) of the Company or any of its Subsidiaries is a party restricting Disclosure Schedule, there are no restrictions on the transfer of, or limiting the exercise of voting rights Company with respect to, to voting the stock of any Subsidiaries SecuritiesSubsidiary of the Company.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (ATRM Holdings, Inc.), Merger Agreement (Digirad Corp)
Capitalization. (a) The authorized capital stock of the Company consists of of: (i) 200,000,000 shares of Company Common Stock and (ii) 10,000,000 shares of Company Preferred Stockpreferred stock, par value $0.001 per share, all of which are undesignated. At As of the close of business on July 26, 2016date hereof, (i) 28,746,664 53,939,431 shares of Company Common Stock were issued and outstanding; , (ii) no 6,706,432 shares of Company Preferred Common Stock were issued and outstanding; subject to issuance pursuant to Company Options, (iii) 4,826,402 3,618,722 shares of Company Shares Common Stock were subject to issuance pursuant to unvested Company Restricted Stock Awards, and (iv) 0 shares of Company Common Stock were held by the Company in its treasury; as treasury shares.
(ivb) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a4.4(b) of the Company Disclosure Letter contains a true, correct and complete listSchedule sets forth, as of the date hereof, a list of (i) all outstanding Company Stock AwardsOptions, indicating as applicable, with respect to each Company Stock Award then outstanding, including the type of Company Stock Award grantedgrant date, the number of shares of Company Common Stock subject to each such award, and the exercise price per share and (ii) all outstanding Company Restricted Stock AwardAwards, including the grant date and the number of shares of Company Common Stock subject to each such award.
(c) Each Company Compensatory Award was (i) granted in accordance with the terms of the applicable Company Equity Incentive Plan and applicable Law, and (ii) validly issued and properly approved by the board of directors of the Company (or a duly authorized committee or subcommittee thereof) no later than the date of grant in material compliance with all applicable legal requirements and recorded on the Company’s financial statements in accordance with GAAP. Each Company Option was granted with an exercise price per share of Company Common Stock equal to or greater than the fair market value of a share of the Company Common Stock on the date of grant.
(d) (i) None of the outstanding Company Common Stock is entitled or subject to any preemptive right, exercise right of repurchase, right of participation, or purchase price any similar right; (ii) none of the outstanding Company Common Stock is subject to any right of first refusal in favor of any of the Acquired Companies; and expiration thereof(iii) there is no contract to which any of the Acquired Companies is a party relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging, or otherwise disposing of (or from granting any option or similar right with respect to), any Company Common Stock. Except for None of the Acquired Companies is under any obligation, nor is any of the Acquired Companies bound by any contract pursuant to which it will become obligated, to repurchase, redeem, or otherwise acquire any outstanding Company Stock Awards, there are on the date hereof no outstanding (A) securities Common Stock. No Subsidiary of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, owns any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. .
(e) There are no bonds, debentures, notes notes, or other indebtedness of the Acquired Companies having voting rights the right to vote (or convertible into or exercisable or exchangeable for securities having such rightsthe right to vote) with respect on any matters on which stockholders of the Company may vote.
(f) As of the date hereof, and except as set forth in Sections 4.4(a) and (b), there is no: (i) outstanding subscription, option, call, warrant, or other right (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit, shares of phantom stock, stock appreciation right, profit participation right, or any other right that is linked to, or the value of which is based on or derived from, the value of any shares of capital stock of the Company; (ii) outstanding security, instrument, bond, debenture or note 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 (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which any Acquired Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities.
(g) All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable.
(h) Section 4.4(h) of the Company Disclosure Schedule sets forth the name, the number, and type of outstanding equity interests and jurisdiction of incorporation or organization of each (i) Company Subsidiary and (ii) entity (other than the Company Subsidiaries) in which the Company or any Company Subsidiary issued and outstandingowns any equity interest. There are no (i) voting trusts All of the outstanding equity interests or other agreements or understandings to which the ownership interests in each Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company Subsidiary have been offered validly issued, fully paid, and issued in compliance in all material respects with all applicable securities lawsnonassessable, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of are owned by the Company, free and clear of any Lien (all Encumbrances, other than Permitted Liens), and there are no proxies with respect to any such sharestransfer restrictions imposed under applicable securities Laws. There are no outstanding (i) securities of the Company or any of its Subsidiaries options, warrants, rights, calls, puts, convertible into or exchangeable for securities, stock-based performance units or other rights to acquire shares of capital stock of any Company Subsidiary or other voting securities Contracts to which any Company Subsidiary is a party or ownership interests in by which any Company Subsidiary is bound obligating any Company Subsidiary to issue, deliver, or sell, or cause to be issued, delivered, or sold, additional shares of the Companycapital stock of, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any security convertible or exchangeable for any shares of its Subsidiariescapital stock of, or obligations any Company Subsidiary. Except as set forth on Section 4.4(h) of the Company Disclosure Schedule, the Company does not own, directly or any of its Subsidiaries to issueindirectly, any capital stock, membership interest, partnership interest, joint venture interest, voting securities interest, or other ownership interests equity interest in any Person (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of than the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (iSubsidiaries), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither nor does the Company nor any of its Subsidiaries owns directly Company Subsidiary have any obligation, contingent, or indirectly otherwise, to participate in, provide funds to, make any equity interests loan, capital contribution, guarantee, or consummate any other investment in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 2 contracts
Sources: Merger Agreement (Harmony Biosciences Holdings, Inc.), Merger Agreement (Zynerba Pharmaceuticals, Inc.)
Capitalization. (a) The authorized capital stock As of the Company date of this Agreement, the Company’s authorized share capital consists solely of 200,000,000 shares of Company Common Stock Shares and 10,000,000 shares 25,000,000 preferred shares, par value $0.01 per share (each, a “Preferred Share”).
(b) As of Company Preferred Stock. At the close of business on July 26November 21, 20162014, (i) 28,746,664 shares of 24,836,879 Company Common Stock Shares were issued and outstanding; , (ii) no shares Company Common Shares were held in the treasury of the Company Preferred Stock were issued and outstanding; (iii) 4,826,402 no Company Common Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rightsCompany’s Subsidiaries. Section 4.2(a3.2(b) of the Company Disclosure Letter contains sets forth, a true, correct and complete list, as of November 21, 2014, of Company Share Options, Restricted Share Awards, Company Time-Based RSUs, Company MSUs and Company EIP Awards (each, an “Equity Award”) under the Company Equity Plans, including the holder, date of grant, expiration date, vested status and vesting schedule, number of Company Common Shares underlying such Equity Award (including the target and maximum number of Company Common Shares underlying such award), the Company Equity Plan under which the Equity Award was granted and, where applicable, exercise or reference price. From November 21, 2014 to the date hereof, the Company has not issued any Company Common Shares except pursuant to the vesting or exercise of all Company Stock AwardsEquity Awards outstanding on November 21, indicating as applicable2014 in accordance with their terms and, with respect to each Company Stock Award then outstandingsince November 21, 2014, the type Company has not issued any Equity Awards. All outstanding grants of Equity Awards were made under and in compliance with the Company Stock Award grantedEquity Plans. No Preferred Shares are issued and outstanding.
(c) Except as described in this Section 3.2, the number as of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awardshereof, there are on (i) no shares or securities of, or other equity or voting interests in, the date hereof Company, (ii) no outstanding (A) shares or securities of the Company convertible into or exchangeable for shares of share capital stock of, or other equity or voting securities or ownership interests in in, the Company, (Biii) no outstanding options, warrants, calls, pre-emptive rights, subscriptions, rights or other commitments or agreements or commitments requiring to acquire from the Company to issueCompany, or other obligations of that obligate the Company to issue, any capital stockshares or securities, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock equity or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof)Company, (Civ) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable exchange security or other similar agreement or commitment relating to any capital stockshares or securities of, voting securities or other ownership equity or voting interests in the Company (the items in clauses (Ai), (Bii), (iii) and (C), together with the capital stock of the Company, iv) being referred to collectively to, collectively, as “Company Securities”), and (v) or (D) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any Company Securities, or dividends paid thereon.
(d) With respect to the shares Equity Awards, (i) each grant of an Equity Award was duly authorized no later than the date on which the grant of such Equity Award was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the Company Board or Compensation Committee, or a committee thereof and any required approval by the shareholders of the Company, (ii) each such grant was made in accordance with all applicable Laws, including the rules of the NYSE, (iii) the per share exercise price of each Company Share Option was not less than the fair market value of a Company Common StockShare on the applicable Grant Date, (iv) each such grant qualifies in all material respects for the Tax and accounting treatment afforded such Equity Awards in the Company’s Tax Returns and the Company SEC Reports, respectively, and (v) no material modifications have been made to any such grants after the Grant Date and all such grants either comply in all material respects with or are exempt from Section 409A of the Code. The treatment of the Equity Awards provided in Section 2.4 will comply with all applicable Laws and the terms and conditions of the Company Equity Plans and the applicable Equity Award agreements.
(e) All issued and outstanding Company Common Shares and all Company Common Shares that are subject to issuance prior to the Effective Time and upon the terms and subject to the conditions specified in the instruments under which they are issuable, (i) are, or, in the case of shares issued after the date hereof, will be, duly authorized, validly issued, fully paid and non-assessable, and issued in compliance with applicable Law and the terms and provisions of the Company’s Organizational Documents, and (ii) are not, or, in the case of shares issued after the date hereof, will not be, subject to any pre-emptive or similar rights, purchase option call or right of first refusal or similar rights.
(f) There are on the date hereof no outstanding contractual obligations of the Company or any of its Subsidiaries (i) to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no Common Shares, bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to of the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts share capital, bonds, debentures, notes or other agreements or understandings to which the Company or indebtedness of any of its Subsidiaries is a party with respect to the voting of capital stock Subsidiary of the Company or (ii) outstanding contractual obligations to provide any funds to or make any investment in (in A) any Subsidiary of the form Company that is not wholly owned by the Company or (B) any other Person. No holder of a loan, capital contribution or otherwise) securities in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or has any other equity interest in the Company or right to have such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from registered by the Company or any of its Subsidiaries, or obligations .
(g) The Company Common Shares constitute the only outstanding class of securities of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of registered under the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesExchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Renaissancere Holdings LTD), Merger Agreement (Platinum Underwriters Holdings LTD)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 60,000,000 shares of Company Common Stock and 10,000,000 5,000,000 shares of preferred stock, $.0001 par value per share ("Company Preferred Stock"). At As of the close of business on July 26December 14, 20161999, (i) 28,746,664 20,324,094 shares of Company Common Stock were issued and outstanding; , (ii) no shares of Company Common Stock were held in the treasury of the Company or by Subsidiaries of the Company, and (iii) no shares of the Company Preferred Stock were issued and outstanding; .
(iiib) 4,826,402 Company Shares were held by Section 3.2(b) of the Company in its treasury; (iv) an aggregate Disclosure Schedule lists the number of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued reserved for future issuance pursuant to the exercise of stock options granted and outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereofof this Agreement and the plans (if any) under which such options were granted (collectively, the "Company Stock Plans") and sets forth a complete and accurate list of all holders of outstanding options to purchase shares of Company Common Stock (such outstanding options, the "Company Stock AwardsOptions"), indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such each Company Stock AwardOption, and the exercise price, the date of grant, exercise or purchase price vesting schedule and the expiration date thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities Section 3.2 of the Company convertible into or exchangeable for shares Disclosure Schedule shows the number of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on Stock reserved for future issuance pursuant to warrants or other outstanding rights to purchase shares of Company Common Stock outstanding as of the date hereof of this Agreement (such outstanding warrants or other rights, the "Company Warrants") and the agreement or other document under which such Company Warrants were granted and sets forth a complete and accurate list of all holders of Company Warrants indicating the number and type of shares of Company Common Stock subject to each Company Warrant, and the exercise price, the date of grant and the expiration date thereof. Except (x) as set forth in this Section 3.2 and (y) as reserved for future grants under Company Stock Plans, (i) there are no outstanding obligations equity securities of any class of the Company or any of its Subsidiaries to purchaseSubsidiaries, redeem or otherwise acquire any Company Securities. There security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (ii) there are no bondsoptions, debentureswarrants, notes equity securities, calls, rights, commitments or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or agreements of any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings character to which the Company or any of its Subsidiaries is a party with respect or by which the Company or any of its Subsidiaries is bound obligating the Company or any of its Subsidiaries to the voting issue, transfer, deliver or sell, or cause to be issued, transferred, delivered or sold, additional shares of capital stock of the Company or any of its Subsidiaries or any security or rights convertible into or exchangeable or exercisable for any such shares, or obligating the Company or any of its Subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. Neither the Company nor any of its Subsidiaries has issued and outstanding any stock appreciation rights, phantom stock, performance based rights or similar rights or obligations. To the knowledge of the Company, other than the Stockholder Agreements, there are no agreements or understandings with respect to the voting (iiincluding voting trusts and proxies) or sale or transfer (including agreements imposing transfer restrictions) of any shares of capital stock of the Company or any of its Subsidiaries.
(c) All outstanding contractual obligations shares of Company Common Stock are, and all shares of Company Common Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Company's Certificate of Incorporation or By-laws or any agreement to which the Company is a party or is otherwise bound. There are no obligations, contingent or otherwise, of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of the Company Common Stock or the capital stock of the Company or any of its Subsidiaries or to provide funds to or make any material investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any other entity, other than guarantees of its bank obligations of Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any entered into in the ordinary course of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in business.
(or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests ind) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries each of the Company have been Company's Subsidiaries are duly authorized and authorized, validly issued and are issued, fully paid and paid, nonassessable and are free of preemptive rights. Except for Subsidiary Securitiesrights and all such shares (other than directors' qualifying shares in the case of non-U.S. Subsidiaries, neither all of which the Company nor any has the power to cause to be transferred for no or nominal consideration to the Buyer or the Buyer's designee) are owned, of its Subsidiaries owns directly record and beneficially, by the Company or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any another Subsidiary of the Company free and clear of all security interests, liens, claims, pledges, agreements, limitations in the Company's voting rights, charges or other encumbrances of any other Person. There are not outstanding obligations to which nature.
(e) No consent of the holders of Company or any Stock Options is required in connection with the conversion of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiessuch options contemplated by Section 6.11.
Appears in 2 contracts
Sources: Merger Agreement (Cmgi Inc), Merger Agreement (Yesmail Com Inc)
Capitalization. (a) The As of the close of business on January 30, 2015 (the “Capitalization Date”), the authorized capital stock of the Company consists consisted of 200,000,000 shares of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 shares of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 400,000,000 shares of Company Common Stock, of which 170,771,809 shares were issued and outstanding (inclusive of Company RSU Awards with respect to 1,813,980 Restricted Shares) and 13,194,668 shares were held by the Company as treasury stock and (ii) 50,000,000 shares of the Company’s preferred stock, par value $0.01 per share (“Company Preferred Stock”), of which no shares were issued and outstanding. From such date until the date hereof, neither There are no other classes of capital stock of the Company nor any of its Subsidiaries has authorized or issued any and outstanding. All issued and outstanding shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its the capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to any Company Plan will, when issued be duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock is entitled to preemptive rights.
(b) From the close of business on the Capitalization Date through the date of this Agreement, there have been no issuances of shares of Company Common Stock, Company Preferred Stock or any other Equity Interests of the Company other than (i) issuances of shares of Company Common Stock pursuant to the exercise of outstanding Company Stock Awards or Options and the vesting and settlement of Company RSU Awards will be Restricted Shares, Company Restricted Stock Units and Company Performance Share Awards, in each case, outstanding as of the Capitalization Date under the Company Equity Plan and (when issued in accordance with ii) issuances of shares of Company Common Stock under the terms thereof)of the ESPPs. As of the close of business on the Capitalization Date, duly authorized there were no options, warrants, calls, commitments, agreements, convertible securities or any other rights to acquire capital stock from the Company to which the Company is a party other than the ESPPs, Company Options, Company Restricted Shares, Company Restricted Stock Units and validly issued and are fully paid and nonassessable and are free Company Performance Share Awards as set forth in Section 3.5(b) of preemptive rightsthe Company Disclosure Letter. Section 4.2(a3.5(b)(i) of the Company Disclosure Letter contains sets forth a true, correct true and complete list, as of the date hereofCapitalization Date, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to Company Options, Company Restricted Stock Units, Company Performance Share Awards, Company Restricted Shares or any other rights to purchase or receive Company Common Stock granted under the Company Equity Plan or otherwise (other than rights to purchase shares of Company Common Stock under the ESPPs), and with respect to each such award (except as set forth on such Section 3.5(b)(i) of the Company Stock AwardDisclosure Letter), the date of grantgrant and the extent to which such award is vested. Not later than five (5) business days prior to the Effective Time, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (Awill update such Section 3.5(b)(i) securities of the Company Disclosure Letter and provide such updated schedule to Parent.
(c) No Indebtedness of the Company having the right to vote (or convertible into or exchangeable exercisable for shares securities having the right to vote) generally with the holders of capital stock of the Company is issued or voting securities or ownership interests in outstanding.
(d) As of the Companydate of this Agreement, (Bi) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other there are no outstanding contractual obligations of the Company to issuerepurchase, redeem or otherwise acquire any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for shares of capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchasesubsidiaries except for purchases, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes redemptions or other indebtedness having voting rights acquisitions of capital stock (A) required by the terms of the Company Equity Plan or convertible into securities having any other Company Plan, (B) in order to pay Taxes or satisfy withholding obligations in respect of such rightsTaxes in connection with awards under the Company Equity Plan or otherwise, or (C) with respect to as required by the terms of, or necessary for the administration of, any plans, arrangements or agreements existing on the date hereof between the Company or any of its subsidiaries and any director or employee of the Company Subsidiary issued or any of its subsidiaries and outstanding. There (ii) there are no (i) voting trusts outstanding stock-appreciation rights, security-based performance units, “phantom” stock or other agreements security rights or understandings other agreements, arrangements or commitments of any character (contingent or otherwise) to which the Company or any of its Subsidiaries subsidiaries is a party and pursuant to which any third party is or may be entitled to receive any payment or other value from the Company or its subsidiaries based on the stock price performance of the Company or any of its subsidiaries (other than under the Company Equity Plan or any other Company Plan set forth on Section 3.5(d) of the Company Disclosure Letter).
(e) As of the date of this Agreement, except as otherwise set forth in this Section 3.5, with respect to any shares of Company Common Stock, Company Preferred Stock or other Equity Interests in the Company, there are (A) no voting trusts or similar agreements to which the Company is a party with respect to the voting of capital stock of such shares, (B) to the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary knowledge of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries subsidiaries is a party restricting the transfer of such shares and (C) no outstanding contractual obligations of the Company to any third party (i) requiring the sale, issuance or disposition of, or limiting the exercise containing any right of voting rights first refusal with respect toto such shares, (ii) requiring the registration for sale of such shares or (iii) to grant any Subsidiaries Securitiespreemptive or anti-dilutive rights.
Appears in 2 contracts
Sources: Merger Agreement (Hospira Inc), Merger Agreement (Pfizer Inc)
Capitalization. (a) The As of the date hereof, the authorized capital stock of the Company consists solely of 200,000,000 40,000,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). At As of the close of business on July 26, 2016the date of this Agreement, (i) 28,746,664 24,372,609 shares of Company Common Stock were issued and outstanding; , 50,000 of which are unvested and subject to risk of forfeiture under the terms of an award of Company Restricted Stock, (ii) 968,985 Company Restricted Stock Units were issued and outstanding, 896,961 of which are unvested and subject to risk of forfeiture under the terms of awards of Company Restricted Stock Units, (iii) no shares of Company Preferred Stock were issued and or outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; , (iv) an aggregate of 4,390,772 no shares of Company Common Stock were held in treasury by the Company, (v) 2,026,971 shares of Company Common Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and Options, (vvi) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 968,985 shares of Company Common StockStock were reserved for issuance pursuant to Company Restricted Stock Units, and outstanding Company RSU Awards with respect to 1,813,980 (vii) 384,333 shares of Company StockCommon Stock were reserved for issuance pursuant to the Warrants. From such date until Section 3.3(a) of the Company Disclosure Letter contains a true and complete schedule as of the date hereofof this Agreement setting forth (as applicable) the holder, neither the number, exercise or reference price, number of shares for which it is exercisable, vesting date and expiration date, in each case of (i) each outstanding Company nor any Stock Option, (ii) each outstanding Company Restricted Stock Unit, (iii) each outstanding award of its Subsidiaries has issued any shares of its capital stockCompany Restricted Stock and (iv) each outstanding Warrant. Except as set forth above, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its no shares of capital stockstock of the Company are issued, reserved for issuance or outstanding. All issued and outstanding shares of the outstanding Company Shares have been, Common Stock and Company Preferred Stock are and all shares of Company Common Stock that which may be issued pursuant to the exercise of outstanding a Company Stock Awards Option or upon the vesting of a Company RSU Awards Restricted Stock Unit will be (be, when issued in accordance with the terms thereof), duly authorized and authorized, validly issued and are issued, fully paid and nonassessable and nonassessable
(b) There are free no preemptive or similar rights on the part of preemptive rights. Section 4.2(a) any holder of any class of securities of the Company Disclosure Letter contains or any Company Subsidiary. Neither the Company nor any Company Subsidiary has outstanding any bonds, debentures, notes or other obligations the holders of which have 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 such Company Subsidiary on any matter submitted to stockholders or a trueseparate class of holders of capital stock. Except as set forth above, correct and complete listthere are not, as of the date hereofof this Agreement, any options, warrants, restricted stock, restricted stock units, calls, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, contracts, arrangements or undertakings of all any kind to which the Company Stock Awardsor any Company Subsidiary is a party or by which any of them is bound (i) obligating the Company or any Company Subsidiary to issue, indicating as applicabledeliver, with respect sell or transfer or repurchase, redeem or otherwise acquire, or cause to each Company Stock Award then outstandingbe issued, the type of Company Stock Award granteddelivered, the number of sold or transferred or repurchased, redeemed or otherwise acquired, any shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities capital stock of the Company convertible into or exchangeable for any Company Subsidiary, any additional shares of capital stock of, or voting securities other equity interests in, or ownership interests in any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the CompanyCompany or any Company Subsidiary, (Bii) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring obligating the Company or any Company Subsidiary to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) obligations of the Company to grant, extend or enter into any subscriptionsuch option, warrant, call, right, convertible security, commitment, contract, arrangement or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company (the items in clauses (A)undertaking, (Biii) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by obligating the Company or any Company Subsidiary pursuant to any right of its Subsidiaries first offer, right of first negotiation, right of first refusal, co-sale or similar provisions or (iv) giving any Person the right to make receive any payments based on economic benefit or right similar to or derived from the price economic benefits and rights accruing to holders of capital stock of, or value other equity interests in, the Company or any Company Subsidiary. As of the shares date of Company Common Stock. There this Agreement, there are on the date hereof no outstanding contractual obligations of the Company or any of its the Company Subsidiaries to purchasesell, repurchase, redeem or otherwise acquire or to register any shares of capital stock of, or other equity interests in, the Company Securitiesor any of the Company Subsidiaries. There are no bondsproxies, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries Company Subsidiary is a party or is bound with respect to the voting of the capital stock of the Company of, or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loanother equity interests in, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Company Subsidiary. No Company Common Stock or is held by any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each wholly owned Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 2 contracts
Sources: Merger Agreement (Amazon Com Inc), Merger Agreement (Audible Inc)
Capitalization. (a) The Company is authorized capital stock of the Company consists of 200,000,000 to issue 60,000,000 shares of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At As of the close date of business on July 26this Agreement, 2016, (i) 28,746,664 12,938,425 shares of Company Common Stock were issued and outstanding; . All of the issued and outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid, non-assessable and free of preemptive rights and have been offered, sold and delivered by the Company in compliance in all material respects with all applicable securities Laws.
(iib) no The Company has reserved 4,315,000 shares of Company Common Stock for issuance pursuant to the Company Stock Option Plans. As of the date of this Agreement, Options to purchase 1,218,791 shares of Company Common Stock and 12,332 unvested shares of Restricted Stock were outstanding. Section 2.5(b) of the Company Disclosure Schedule includes a true and complete list of all Options and Restricted Stock awards outstanding as of the date of this Agreement, including the names of the Persons to whom such Options and Restricted Stock awards have been granted, the number of shares subject to each Option or Restricted Stock award, as applicable, the per share exercise price for each Option and the vesting schedule for the Company Stock Option Plan under which each Option and Restricted Stock award was granted, which vesting schedule applies to each such Option and Restricted Stock award. True and complete copies of all instruments (or the forms of such instruments) referred to in this Section 2.5(b) have been furnished or made available to Parent.
(c) The Company is authorized to issue 400,000 shares of Company Preferred Stock were Stock, none of which is issued and outstanding; (iii) 4,826,402 Company Shares were held by . Of the Company in its treasury; (iv) an aggregate of 4,390,772 Preferred Stock, 400,000 shares of Company Stock were have been designated as “Series A Junior Participating Preferred Shares” and reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and Rights Plan.
(vd) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 Except for (i) shares of Company Common Stock, indicated as issued and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until on the date hereofhereof in Section 2.5(a), neither (ii) shares issued after the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to date hereof upon the exercise of outstanding Options listed in Section 2.5(b) of the Company Stock Awards or vesting of Company RSU Awards will be Disclosure Schedule, and (when iii) shares issued after the date hereof in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a trueRights Plan, correct and complete list, there are not as of the date hereof, of all and at the Effective Time there will not be, any Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type Shares or shares of Company Preferred Stock Award grantedissued and outstanding.
(e) The Company’s authorized capital stock consists solely of the Company Common Stock described in Section 2.5(a) and the Company Preferred Stock described in Section 2.5(c). There are not as of the date hereof, and at the number of Effective Time there will not be, any shares of Company Common Stock subject to such or Company Preferred Stock Award, reserved for issuance other than as described in Sections 2.5(b) and (c). There are not as of the date of granthereof, exercise and at the Effective Time there will not be, authorized or purchase price and expiration thereof. Except for the Company Stock Awardsoutstanding any subscriptions, there are on the date hereof no outstanding (A) securities of the Company convertible into options, conversion or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) optionsexchange rights, warrants, callsrepurchase or redemption agreements, pre-emptive rights, subscriptions, rights or other agreements agreements, claims or commitments requiring of any nature whatsoever obligating the Company to issue, transfer, deliver or other obligations sell, or cause to be issued, transferred, delivered, sold, repurchased or redeemed, additional shares of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting other securities of Company or other ownership interests in) the any Company (or, in each case, the economic equivalent thereof), (C) obligations of Subsidiary or obligating the Company to grant, extend or enter into any subscriptionsuch agreement, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests than Options listed in the Company (the items in clauses (A), (BSection 2.5(b) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any Disclosure Schedule and under the Company Rights Plan.
(f) Except as set forth in Section 2.5(f) of its Subsidiaries to purchasethe Company Disclosure Schedule, redeem or otherwise acquire any Company Securities. There there are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries Company Subsidiary is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership equity interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any Company Subsidiary or which restrict the transfer of its Subsidiaries to issue, any capital stock, voting securities such shares or other ownership equity interests, nor does the Company have knowledge of any third party agreements or understandings with respect to the voting of any such shares or other equity interests in or which restrict the transfer of any such shares or other equity interests.
(g) The Company has no outstanding bonds, debentures, notes or other indebtedness or obligations the holders of which have the right to vote (or securities which are convertible into or exchangeable exercisable for capital stock or voting securities or other ownership interests inhaving the right to vote) on any Subsidiary of the Company, (iii) obligations matters on which shareholders of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of may vote.
(h) Neither the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “nor any Company Subsidiary Securities”) or (iv) obligations of the Company or beneficially owns any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries Parent.
(i) Except as set forth in Section 2.5(i) of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary SecuritiesDisclosure Schedule, neither the Company nor any of its Subsidiaries owns directly or indirectly Company Subsidiary is under any equity interests in any Personobligation, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution contingent or otherwise) in , by reason of any Subsidiary agreement to register the offer and sale or resale of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting their securities under the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesSecurities Act.
Appears in 2 contracts
Sources: Merger Agreement (Precision Castparts Corp), Merger Agreement (SPS Technologies Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 90,000,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, par value $0.01 per share, of the Company (of which 1,000,000 shares have been designated as Series A Junior Participating Preferred StockStock and reserved for issuance upon exercise of the Company Rights). At As of the close of business on July 26November 1, 20162006, (i) 28,746,664 shares of 29,999,426 Company Common Stock Shares were issued and outstanding; , (ii) no shares of preferred stock of the Company Preferred Stock were issued and outstanding; , (iii) 4,826,402 Company Stock Options to purchase an aggregate of 6,008,648 Company Shares were held by the issued and outstanding (of which Company in its treasury; Stock Options to purchase an aggregate of 3,407,135 Company Shares were exercisable), and (iv) an aggregate of 4,390,772 shares of 71,913 Company Stock Shares were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares settlement of Company Common Stock, and Restricted Share Awards. All outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All stock of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding any Company Stock Awards or vesting of Company RSU Awards Plan will be (be, when issued in accordance with the respective terms thereof), duly authorized and validly issued and are (or, in the case of shares that have not yet been issued, will be) fully paid and paid, nonassessable and are free of preemptive rights. .
(b) Section 4.2(a5.05(b) of the Company Disclosure Letter contains a true, correct and complete listSchedule sets forth, as of the date hereofclose of business on November 1, 2006, a complete and correct list of (i) all outstanding Company Stock AwardsOptions, indicating as applicable, including with respect to each Company Stock Award then outstandingsuch option, the type number of shares subject to such option, the name of the holder, the grant date, the exercise price per share, the vesting schedule (including any portion that would become vested as a result of the transactions contemplated hereby) and expiration date of each such option, whether the option is an “incentive stock option” under Section 422 of the Code or a non-qualified stock option, and the form of Company Stock Award Option award agreement pursuant to which such option was granted, and (ii) all outstanding Company Restricted Share Awards, including with respect to each such award, the number name of the holder, the grant date and vesting schedule (including any portion that would become vested as a result of the transactions contemplated hereby), whether a Section 83(b) election was taken under the Code (if available) with respect to such Company Restricted Share Award, and the form of Company Restricted Share Award grant agreement pursuant to which such award was granted. The Company Stock Plans set forth on Section 5.05(b) of the Company Disclosure Schedule are the only plans or programs the Company or any of its Subsidiaries maintains under which stock options, restricted shares, restricted share units, stock appreciation rights, performance shares or other compensatory equity-based awards have been granted and remain outstanding or may be granted. All Company Stock Options and Company Restricted Share Awards may, by their terms, be treated in accordance with Section 3.06.
(c) Except, in the case of clauses (i)-(iv) below, (x) as set forth in this Section 5.05, (y) for changes since November 1, 2006 resulting from the exercise of Company Stock Options outstanding on such date and disclosed on Section 5.05(b) of the Company Disclosure Schedule, or (z) for issuances of shares of Company Common Stock subject to such and grants of Company Stock Award, the date Options expressly permitted under clauses (A) and (B) of grant, exercise or purchase price and expiration thereof. Except for the Company Stock AwardsSection 7.01(c)(i), there are on the date hereof no outstanding (Ai) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in of the Company, (Biii) options, warrants, calls, pre-emptive rights, subscriptions, warrants or other rights or other agreements or commitments requiring arrangements to acquire from the Company to issueCompany, or other obligations or commitments of the Company to issue, any capital stock, stock or other voting securities or other ownership interests in (in, or any securities convertible into or exchangeable for capital stock or other voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof)Company, (Civ) obligations of restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the Company to grantvalue or price of, extend or enter into any subscriptioncapital stock of, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in in, the Company (the items in clauses (A), (Bi)-(iv) and (C), together with the capital stock of the Company, being referred to collectively as the “Company Securities”), (v) voting trusts, proxies or (D) obligations other similar agreements or understandings to which Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound with respect to make the voting of any payments based on the price or value of the shares of capital stock of Company Common Stock. There are on or any of its Subsidiaries, (vi) obligations or commitments of any character restricting the date hereof no outstanding transfer of, or requiring the registration for sale of, any shares of capital stock of Company or any of its Subsidiaries, or (vii) obligations or commitments of any character of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any of the Company Securities. There No Company Securities are no bonds, debentures, notes or other indebtedness having voting rights owned by any Subsidiary of the Company.
(or convertible into securities having such rightsd) with With respect to the Company or any Company Subsidiary issued and outstanding. There are no Stock Options, (i) voting trusts each Company Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies, (ii) each grant of a Company Stock Option was duly authorized no later than the date on which the grant of such Company Stock Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the Company Board (or a duly constituted and authorized committee thereof), or a duly authorized delegate thereof, and any required shareholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto no later than the Grant Date, (iii) each such grant was made in accordance with the terms of the applicable Company Stock Plan, the 1934 Act and all other Applicable Law, including the rules of Nasdaq, (iv) the per share exercise price of each Company Stock Option was not less than the fair market value of a share of Company Common Stock on the applicable Grant Date, and (v) each such grant was properly accounted for in all material respects in accordance with GAAP in the financial statements (including the related notes) of the Company and disclosed in the Company SEC Documents in accordance with the 1934 Act and all other Applicable Laws. The Company has not granted, and there is no and has been no Company policy or practice to grant, Company Stock Options prior to, or otherwise coordinate the grant of Company Stock Options with, the release or other agreements or understandings to which public announcement of material information regarding the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to their financial results or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsprospects.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 2 contracts
Sources: Merger Agreement (Stellent Inc), Merger Agreement (Oracle Corp)
Capitalization. (a) The authorized capital stock of the Company consists of (i) 200,000,000 Shares, and (ii) 25,000,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). At the close As of business on July 26June 19, 20162008, (i) 28,746,664 shares of Company Common Stock 74,325,043 Shares were issued and outstanding; outstanding (not including Shares held in the treasury of the Company), all of which are duly authorized, validly issued, fully paid and non-assessable, (ii) 994,731 Shares were held in the treasury of the Company, (iii) no Shares are held by the Subsidiaries, (iv) 4,386,270 Shares were reserved for future issuance pursuant to outstanding Company Stock Options, Company Restricted Stock Awards, Company Performance Share Awards and other purchase rights (the “Company Stock Awards”) granted pursuant to the Company Stock Option Plan, and (v) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by . Except as set forth in this Section 4.03, there are no options, warrants, convertible debt or other convertible instruments or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under or obligating the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued issue or sell any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stockof, or granted any other awards in respect of any shares of its capital stock or equity interests in, the Company.
(b) The following information has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant been made available to Parent prior to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, hereof with respect to each Company Stock Award then outstanding, outstanding as of the type date of this Agreement: (i) the name and address of the Company Stock Award recipient; (ii) the particular plan pursuant to which such Company Stock Award was granted, ; (iii) the number of shares of Company Common Stock Shares subject to such Company Stock Award, ; (iv) the date of grant, exercise or purchase price of such Company Stock Award; (v) the date on which such Company Stock Award was granted; and expiration thereof(vi) the date on which such Company Stock Award expires.
(c) Each outstanding share of capital stock of, or other equity interest in, each Subsidiary is duly authorized, validly issued, fully paid and non-assessable, and each such share is owned by the Company or another Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoever, except for limitations on transfer imposed by federal or state securities Laws. Except for There are no options, warrants, convertible debt or other convertible instruments or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or other equity interests in, any Subsidiary.
(d) The Company has made available to Parent an accurate and complete copy of the Company Stock Option Plan pursuant to which Company has granted the Company Stock Awards that are currently outstanding and the form of all stock award agreements evidencing such Company Stock Awards. All Shares subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and non-assessable. All outstanding Shares, all outstanding Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free have been issued and clear of any Lien (other than Permitted Liens), and there are no proxies granted in compliance in material respects with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Companyall applicable Laws, and (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests all requirements set forth in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesapplicable contracts.
Appears in 2 contracts
Sources: Merger Agreement (Bunge LTD), Merger Agreement (Corn Products International Inc)
Capitalization. (a) The authorized capital stock of the Company STFC consists of 200,000,000 shares 100,000,000 Shares, 2,500,000 Class A Preferred Shares and 2,500,000 Class B Preferred Shares. As of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 267, 20162021 (the “Measurement Date”), (i) 28,746,664 shares of Company Common Stock were 44,115,990 Shares are issued and outstanding; , (of which 25,000 were STFC RSAs assuming attainment of all applicable performance-based vesting requirements at the maximum payout levels), (ii) no shares of Company Class A Preferred Stock were Shares and no Class B Preferred Shares are issued and outstanding; , (iii) 4,826,402 Company 3,329,519 Shares were held by issuable in respect of outstanding STFC RSUs, assuming attainment of all applicable performance-based vesting requirements at the Company in its treasury; maximum payout levels, (iv) an aggregate of 4,390,772 shares of Company Stock 570,275 Shares were reserved for issuance pursuant subject to outstanding awards and rights under the Company STFC Stock Plans Options, and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 6,914,512 shares are held in STFC’s treasury and no Shares are held by a Subsidiary of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company StockSTFC. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards Except as set forth in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereofthis Section 5.03(a), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock AwardsMeasurement Date, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or ownership interests in STFC. From the Companyclose of business on the Measurement Date through the date of this Agreement, there have been no (BI) options, warrants, calls, pre-emptive rights, subscriptions, rights issuances of any Shares or any other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock equity or voting securities or interests in STFC other ownership interests inthan issuances of Shares pursuant to the exercise, vesting or settlement, as applicable, of STFC Equity Awards outstanding as of the close of business on the Measurement Date in accordance with the terms of such STFC Equity Awards in effect as of the Measurement Date or (II) grants of any STFC Equity Awards or any other equity or equity-based awards that could result in the Company issuance of Shares.
(orb) Other than 423,252 Shares reserved for issuance under the ESPP or pursuant to the terms of the MSPP as in effect on the date of this Agreement, in each case, the economic equivalent thereof), (C) there are no outstanding contractual 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company STFC or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company SecuritiesShares or STFC Share Rights or to pay any dividend or make any other distribution in respect thereof (other than quarterly cash dividends paid by STFC on the Shares not in excess of $0.10 per Share, per quarter). There are no bondsshareholder agreements, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company STFC or any of its Subsidiaries is a party with respect to the voting of capital stock of holding, voting, registration, redemption, repurchase or disposition of, or that restricts the Company or (ii) outstanding contractual obligations to provide funds to or make transfer of, any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership equity interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary SecuritiesSTFC. All of outstanding Shares are, and any additional Shares issued by STFC after the outstanding shares of capital stock of date hereof and prior to the Subsidiaries of the Company have been Effective Time will be, duly authorized and validly issued and are issued, fully paid and nonassessable nonassessable, and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds not subject to or make issued in violation of any investment purchase option, call option, right of first refusal, preemptive right, subscription right or similar right.
(in the form of a loanc) With respect to each STFC Equity Award, capital contribution or otherwiseSection 5.03(c) in any Subsidiary of the Company STFC Disclosure Letter sets forth, as of the Measurement Date, the name of the holder of such STFC Equity Award, the number of vested and unvested Shares covered by such STFC Equity Award (assuming attainment of all applicable performance-based vesting requirements at the maximum payout levels), the date of grant, the vesting schedule applicable to the STFC Equity Awards, the cash exercise price or any other Person▇▇▇▇▇ ▇▇▇▇▇ per share of such STFC Equity Award, if applicable, and the applicable expiration date. There are not outstanding obligations No STFC Stock Option is subject to which Section 409A of the Company or any Code and each STFC Stock Option intended to qualify as an “incentive stock option” under Section 422 of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesCode so qualifies.
Appears in 2 contracts
Sources: Merger Agreement (State Auto Financial CORP), Merger Agreement
Capitalization. (a) The authorized capital stock of the Company consists consists, as of 200,000,000 shares the date hereof and immediately prior to the Closing (subject to the effect of Company Common Stock OP Redemptions and 10,000,000 shares of Company Preferred Stock. At OP Exchanges, if any, that occur between the close of business on July 26date hereof and the Closing Date), 2016, of:
(i) 28,746,664 100,000,000 shares of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 10,724,009 shares of Company Stock. From such date until the date hereof, neither the Company nor any which are issued and 10,066,907 of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stockwhich are outstanding. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof)have been duly authorized, duly authorized and validly issued and are fully paid and nonassessable and are free were issued in compliance with all applicable federal and state securities Laws.
(ii) 20,000,000 shares of preemptive rights. Section 4.2(a) preferred stock, $0.01 par value per share, of the Company Disclosure Letter contains a true(“Preferred Stock”), correct none of which are issued and complete listoutstanding. The rights, as privileges and preferences of the date hereofPreferred Stock are as stated in the Company’s articles of incorporation and as provided by the Georgia Business Corporation Code.
(b) The Stock Plan has been duly adopted by the Board of Directors and approved by the Company’s shareholders. 139,038 shares have been issued under the Stock Plan pursuant to restricted stock award agreements and all such grants have fully vested. No options to purchase shares have been granted under the Stock Plan, no other awards or grants have been promised by the Company or approved by the Board of all Company Stock AwardsDirectors, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of and 514,962 shares of Company Common Stock subject remain available for future issuance under the Stock Plan to such officers, directors, employees and consultants. The Company has furnished to the Purchaser complete and accurate copies of the Stock Award, Plan and forms of agreements used thereunder.
(c) Other than the date provisions of grant, exercise or purchase price the Partnership Agreement governing OP Redemptions and expiration thereof. Except for the Company Stock Awardsoffering materials related to the OP Exchanges, there are on the date hereof no outstanding options, warrants, rights (Aincluding conversion or preemptive rights and rights of first refusal or similar rights) securities of or agreements, orally or in writing, to purchase or acquire from the Company any shares of Common Stock or Preferred Stock, or from the Operating Partnership any OP Units or any securities convertible into or exchangeable for shares of capital Common Stock or Preferred Stock.
(d) The Company’s restricted stock agreements contain a provision for acceleration of vesting or voting other changes in the vesting provisions or other terms of such agreement or understanding upon the occurrence of any event or combination of events, but there are no unvested shares of restricted stock outstanding. The Company has never granted any stock options.
(e) The OP Units issued and outstanding prior to the Effective Date were issued in accordance with the Partnership Agreement and in compliance with applicable securities Laws and were not issued in violation of any preemptive or similar rights. Other than the provisions of the Partnership Agreement governing OP Redemptions and the offering materials related to the OP Exchanges, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, OP Units of or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights Operating Partnership are or other agreements or commitments requiring will be outstanding at the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsClosing.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Acre Realty Investors Inc), Stock Purchase Agreement (Roberts Realty Investors Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 1,000,000,000 Shares and 200,000,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). At As of the close of business on July 26September 2, 20162016 (the “Determination Date”), (iA) 28,746,664 shares of Company Common Stock 30,464,596 Shares were issued and outstanding; , Table of Contents (iiB) 4,616,496 Shares were subject to outstanding Company Options and 207,123 Shares were subject to outstanding purchase rights under the Company ESPP, (C) 2,548,269 Shares were issuable in respect of outstanding Restricted Stock Units, (D) up to 3,495 Shares were issuable in respect of the Warrant, (E) no Shares were held by the Company as treasury shares and (F) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were outstanding or held by the Company in its treasury; (iv) an aggregate as treasury shares. Since the close of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under business on the Determination Date, the Company Stock Plans and (v) under the has not issued, granted or repurchased any Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any Securities other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued than pursuant to the exercise of Company Options or settlement of Restricted Stock Units granted prior to the Determination Date. All outstanding Company Shares are validly issued, fully paid, nonassessable and free of any preemptive rights.
(b) 7,164,765 Shares are subject to issuance pursuant to Outstanding Stock Awards and 207,123 Shares were subject to purchase rights under the Company ESPP, in each case outstanding as of the close of business on the Determination Date. Since the Determination Date, the Company has not granted, committed to grant or vesting of Company RSU otherwise created or assumed any obligation with respect to any Stock Award, other than as permitted by Section 5.2. All Stock Awards will be (when issued have been validly granted and properly approved in accordance with all Applicable Law and the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. applicable Company Equity Incentive Plan.
(c) Except as set forth in this Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards3.5, there are on the date hereof (i) no outstanding shares of capital stock of, or other equity or voting interest in, the Company, (Aii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting securities or ownership interests in interest in, the Company, (Biii) no outstanding options, stock appreciation rights, warrants, calls, pre-emptive rights, subscriptionsrestricted stock units, rights or other commitments or agreements or commitments requiring to acquire from the Company to issueCompany, or other obligations of that obligates the Company to issue, any capital stockstock of, voting securities or other ownership interests in (equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting securities or other ownership interests interest in) the Company (or, in each case, the economic equivalent thereof)Company, (Civ) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment (whether payable in equity, cash or otherwise) relating to any capital stockstock of, or other equity or voting interest (including any voting debt) in, the Company, (v) no outstanding restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other securities or ownership interests in in, the Company (the items in clauses (Ai), (Bii), (iii), (iv) and (Cv), together with the capital stock of the Company, being referred to collectively as “Company Securities”), (vi) no voting trusts, proxies, voting agreements or similar arrangements or understandings to which the Company is a party or by which the Company is bound with respect to the voting of any shares of capital stock of, or other equity or voting interest in, the Company, (Dvii) no obligations or binding commitments of any character restricting the transfer of any shares of capital stock of, or other equity or voting interest in, the Company to which the Company is a party or by which it is bound, and (viii) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common StockSecurities. There are on the date hereof no outstanding obligations Contracts of any kind which obligate the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities. Section 3.5(c) of the Company Disclosure Letter contains a correct and complete list as of the Determination Date of outstanding Company Options and Restricted Stock Units, including the holder, the location of employment of any holder that is a current employee of the Company as reflected in the current records of the Company, the Company Equity Incentive Plan under which the award was granted (if applicable), the date of grant, term (for Company Options), where applicable, number of Shares underlying such Company Security and, where applicable, exercise price and vesting schedule. Each Company Option (x) was granted with an exercise price per share equal to or greater than the fair market value of a share of Company Common Stock on the effective date of such grant, (y) has a grant date identical to the grant date approved by the Company Board or the compensation committee of the Company Board, which is either the date on which the Company Option was awarded or a later date specified by the Company Board or the compensation committee of the Company Board and (z) was granted in material compliance with all Applicable Laws. No Subsidiary of the Company owns any Shares or any other Company Security.
(d) There are no accrued and unpaid dividends with respect to any outstanding Shares. The Company does not have a stockholder rights plan in effect. Table of Contents
(e) The Company does not have outstanding any bonds, debentures, notes or other indebtedness having voting rights obligations the holders of which have the right to vote (or convertible into securities having such rightsor exercisable for Company Securities with the right to vote) with respect to the Company’s stockholders on any matter.
(f) Neither the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or nor any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party Contracts restricting the transfer of, relating to the voting of, requiring registration of, or limiting the exercise granting any preemptive rights, anti-dilutive rights or rights of voting first refusal or similar rights with respect to, to any Subsidiaries Company Securities.
Appears in 2 contracts
Capitalization. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 200,000,000 400,000,000 shares of Company Common Stock and 10,000,000 50,000,000 shares of Company Preferred Stock. At .
(b) As of the close of business on July 2610, 20162014, there were (i) 28,746,664 71,239,946 shares of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 9,297,526 shares of Company Shares were held Common Stock owned by the Company in its treasuryas treasury stock; (iv) an aggregate of 4,390,772 no shares of Company Common Stock were owned by Subsidiaries of the Company; and (v) 1,233,067 shares of Company Common Stock reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Incentive Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all including (A) 659,979 shares of Company Common Stock that may be issued are subject to issuance pursuant to the exercise of Company Stock Options outstanding under the Company Stock Incentive Plans (whether or not presently exercisable) and (B) 573,088 shares of Company Common Stock subject to outstanding Company Stock Awards RSUs (assuming target performance levels are achieved). As of the close of business on July 10, 2014, except as set forth above, no other Securities or vesting Equity Interests of the Company were issued, reserved for issuance or outstanding. From the close of business on July 10, 2014 to the date of this Agreement, there have been no issuances by the Company of any Securities or Equity Interests of the Company, other than the issuance of Company RSU Awards Common Stock upon the exercise of Company Stock Options or settlement of Company RSUs. All of the issued and outstanding shares of Company Common Stock have been, and any shares of Company Common Stock issued upon the exercise of Company Stock Options or settlement of Company RSUs will be (when issued in accordance with the terms thereof)be, duly authorized and validly issued and are or will be fully paid and paid, nonassessable and are free of preemptive or similar rights. Section 4.2(a.
(c) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there There are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the CompanySecurities, (B) options, warrants, calls, pre-emptive rights, subscriptions“phantom” stock rights, rights stock appreciation rights, stock-based performance units, commitments or other agreements or commitments requiring the Company Contracts to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by which the Company or any Company Subsidiary is a party, or by which the Company or any Company Subsidiary is bound, obligating the Company or any Company Subsidiary to issue, deliver or sell, Securities of its Subsidiaries the Company or of any Company Subsidiary, or obligating the Company to make any payments payment based on the value or price or value of the shares of Company Common StockStock or of any Security of the Company or any Company Subsidiary. There are on the date hereof no outstanding contractual obligations of the Company or any of its Subsidiaries Company Subsidiary to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bondsSecurities or Equity Interests of, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to to, or make any investment (in the form of a loan, capital contribution or otherwise) in in, the Company, any Company Subsidiary or any other Person, other than pursuant to the Company Benefit Plans or pursuant to arrangements among the Company or any Company Subsidiaries.
(d) There are no bonds, debentures, notes or other Indebtedness of the Company or any of its the Company Subsidiaries in exchange for ownership having the right to vote (or convertible into, or exchangeable for, Securities having the right to vote) on any matters on which stockholders of Common Stock the Company may vote. There are no proxies, voting trusts or any other equity interest in Contracts to which the Company or such Subsidiary. All outstanding securities any Company Subsidiary is a party, or is bound, with respect to the voting of any Securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including or any Company Subsidiary or the registration of the Securities Act and “blue sky” lawsof the Company or the Company Subsidiaries under any U.S. or foreign securities Law.
(be) The Company is, directly or another of its Subsidiaries is indirectly, the record holder and beneficial owner Beneficial Owner of all of the issued and outstanding shares of capital stock Securities of each Subsidiary of the CompanyCompany Subsidiary, free and clear of any Lien material Liens and free of any other material limitation or restriction (other than Permitted Liens)including any limitation or restriction on the right to vote, and there are no proxies with respect to any such shares. There are no outstanding (i) securities sell, transfer or otherwise dispose of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (iSecurities), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of such Securities so owned by the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free no such Securities have been issued in violation of any preemptive or similar rights. Except for Subsidiary Securities, neither the Securities of the Company nor any Subsidiaries or as set forth on Section 3.2(e) of its Subsidiaries owns the Company Disclosure Letter, the Company does not own, directly or indirectly indirectly, any equity Securities or other ownership interests in any Person, or has any obligation to acquire other Person (any such equity interests, or to provide funds to or make any investment (interests in the form of a loan, capital contribution or otherwiseanother Person set forth on Section 3.2(e) in any Subsidiary of the Company Disclosure Letter, a “Company Investment”). The Company owns, directly or indirectly, each Company Investment, free and clear of any material Liens and free of any other Person. There are not outstanding obligations material limitation or restriction (including any limitation or restriction on the right to which the vote, sell, transfer or otherwise dispose of such Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesInvestment).
Appears in 2 contracts
Sources: Merger Agreement (Rockwood Holdings, Inc.), Merger Agreement (Albemarle Corp)
Capitalization. (a) The authorized capital stock Company Capital Stock of the Company consists of 200,000,000 100,000,000 shares of Company Common Stock and 10,000,000 2,250,000 shares of Company Preferred Stock. At As of the close of business on July 26March 27, 20162017 (the “Capitalization Date”), (iA) 28,746,664 shares of 51,192,445 Company Common Stock Shares were issued and outstanding; , (iiB) no shares of Company Preferred Stock were issued and outstanding; , and (iiiC) 4,826,402 no shares of Company Shares Capital Stock were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stockas treasury shares. All of the outstanding Company Shares have beenare validly issued, fully paid, non-assessable and all free of any preemptive rights. Since the Capitalization Date, the Company has not issued any securities (including derivative securities) except for shares of Company Common Stock that may be purchased under the Company ESPP, issued pursuant to the upon exercise of outstanding Company Stock Awards or Awards, the vesting of Company RSU Awards will be Restricted Stock Units or the vesting of Company Performance Stock Units in all cases, granted either (when issued A) as of the date hereof or (B) following the date hereof as permitted pursuant to Section 6.2(b) or Section 6.2(b) of the Company Disclosure Letter, in each case, in accordance with the terms thereof)of a Company Stock Plan or the Company ESPP, duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. as applicable, as in effect on the date hereof.
(b) Section 4.2(a4.4(b) of the Company Disclosure Letter contains sets forth a truecomplete and accurate list of all stock option plans or any other plan or agreement adopted by the Company under which there are outstanding awards that provide for the issuance of equity to any Person (the “Company Stock Plans”). The Company has made available to Parent complete and accurate copies of all Company Stock Plans and the forms of all award agreements issued under the Company Stock Plans.
(c) As of the Capitalization Date, correct (i) 4,732,501 shares of Company Common Stock were subject to issuance pursuant to Company Stock Options (other than Company Performance Stock Options), (ii) 723,818 shares of Company Common Stock were subject to issuance pursuant to Company Restricted Stock Units (for purposes of clarification, other than Company Performance Stock Units), (iii) 400,000 shares of Company Common Stock were subject to issuance pursuant to Company Performance Stock Options (iv) 70,000 shares of Company Common Stock were subject to issuance pursuant to Company Performance Stock Units, and (v) 1,297,694 shares of Company Common Stock were reserved for future issuance under the Company ESPP. Except as described in Section 4.4(a) and this Section 4.4(c), (A) no capital stock of the Company or any of its Subsidiaries or any security convertible or exchangeable into or exercisable for such capital stock, is issued, reserved for issuance or outstanding and (B) there are no exercisable securities, there are no options, preemptive rights, warrants, calls, rights or Contracts of any kind to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries is bound or otherwise promised, obligating the Company or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of the Company or any of its Subsidiaries or obligating the Company or any of its Subsidiaries to grant, extend or accelerate the vesting of, or enter into, any option, preemptive right, warrant, call, right, or similar agreement, arrangement or understanding.
(d) Section 4.4(d) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date hereofCapitalization Date, of all outstanding equity-based awards of the Company, whether payable in stock, cash or other property or any combination of the foregoing granted by the Company under any Company Stock Plans or otherwise (the “Company Stock Awards”), indicating as applicableindicating, with respect to each Company Stock Award then outstanding, the person to whom awards were granted, the type of Company Stock Award awards granted, the number of shares of Company Common Stock subject to or covered by such Company Stock Award, the plan under which such Company Stock Award was granted, the exercise or purchase price (if any), date of grant, exercise or purchase price the number of unvested shares, and expiration thereofthe extent to which any vesting had occurred as of the date of this Agreement. Except for the All outstanding Company Stock Awards, there are Awards have been properly accounted for in accordance with GAAP on the date hereof no outstanding (A) securities consolidated audited financial statements of the Company convertible into and its Subsidiaries filed in or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring furnished with the Company to issue, or other obligations of the Company to issue, any capital stockSEC Reports.
(e) There are no stockholder agreements, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (ortrusts, in each case, the economic equivalent thereof), (C) obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security proxies or other similar agreement or commitment relating to any capital stockagreements, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements arrangements or understandings to which the Company or any of its Subsidiaries is a party party, or by which it or they are bound, obligating the Company or any of its Subsidiaries with respect to the voting any shares of capital stock of the Company or any of its Subsidiaries. There are no rights or obligations, contingent or otherwise (ii) outstanding contractual obligations to provide funds to or make any investment (including rights of first refusal in favor of the form Company), of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock Subsidiaries, to repurchase, redeem or otherwise acquire any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary of the Company or any other Personentity. There are not outstanding obligations no registration rights or other Contracts to which the Company or any of its Subsidiaries is a party restricting the transfer ofparty, or limiting by which it or they are bound, obligating the exercise Company or any of voting rights its Subsidiaries with respect toto any shares of Company Common Stock or shares of capital stock of any such Subsidiary.
(f) All outstanding shares of Company Common Stock are, and all shares of Company Common Stock reserved for issuance as specified above will be, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Company Certificate of Incorporation or the Company Bylaws or any agreement to which the Company is a party or otherwise bound. None of the outstanding shares of Company Common Stock have been issued in violation of any United States federal or state securities laws. All of the outstanding shares of capital stock of each of the Subsidiaries Securitiesof the Company are duly authorized, validly issued, fully paid and nonassessable, and all such shares (other than directors’ qualifying shares in the case of foreign Subsidiaries) are owned by the Company or a Subsidiary of the Company free and clear of any and all Liens. There are no accrued and unpaid dividends with respect to any outstanding shares of capital stock of the Company or any of its Subsidiaries.
(g) Company Common Stock constitutes the only class of equity securities of the Company or its Subsidiaries registered or required to be registered under the Exchange Act.
(h) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any indebtedness for borrowed money.
Appears in 2 contracts
Sources: Merger Agreement (Exar Corp), Merger Agreement (Maxlinear Inc)
Capitalization. (a) The authorized capital stock of the Company consists of: (i) 620,000,000 shares of 200,000,000 Common Stock, par value $0.0001 of the Company (the “Company Common Stock”), of which 76,912,028 shares are issued and outstanding as of the date of this Agreement; (ii) 469,955,057 shares of Preferred Stock, par value $0.0001 of the Company, of which (x) 262,070,014 shares have been designated Series A Preferred Stock of the Company (the “Company Series A Preferred Stock”), all of which are issued and outstanding as of the date of this Agreement and (y) 207,885,043 shares have been designated Series B Preferred Stock of the Company (the “Company Series B Preferred Stock”, together with the Company Series A Preferred Stock, the “Company Preferred Stock”), 207,394,482 of which are issued and outstanding as of the date of this Agreement. All of the issued and outstanding shares of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 shares of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and have not been issued in violation of any preemptive or similar rights. Each share of Company Common Stock and Company Preferred Stock has been issued in compliance in all material respects with: (A) Applicable Legal Requirements; and (B) the Company’s Charter Documents.
(b) The Company has previously provided to Parent a list, dated as of August 3, 2021, that is true and correct as of such date, setting forth the name of (i) each Company Stockholder and the number and class or series of shares of Company Common Stock and Company Preferred Stock held by each, and (ii) each holder of any Company Option and Company Restricted Stock Awards granted under the Company Incentive Plan, the number of Company Options and Company Restricted Stock Awards held by each holder, the class of shares underlying such Company Options or Company Restricted Stock Award and the applicable exercise price of the Company Options (the “Capitalization Ledger”). Other than the Company Options and the Company Restricted Stock Awards there are free no stock appreciation, phantom stock, stock-based performance unit, profit participation, restricted stock, restricted stock unit or other equity-based compensation award or similar rights with respect to the Company. Each Company Option held by a U.S. taxpayer has been granted with an exercise price that is intended to be no less than the fair market value of preemptive rightsthe underlying Company Common Stock on the date of grant, as determined in accordance with Section 409A of the Code or Section 422 of the Code, if applicable. Each Company Option held by a U.S. taxpayer is intended to be exempt under Section 409A of the Code. Other than the Company Options, the Company has not granted any outstanding options, warrants, rights or other securities convertible into or exchangeable or exercisable for shares of the Company Common Stock or Company Preferred Stock, or any other commitments or agreements providing for the issuance of additional shares, the sale of treasury shares, or for the repurchase or redemption of shares of Company Common Stock or Company Preferred Stock, and there are no agreements of any kind which may obligate the Company to issue, purchase, register for sale, redeem or otherwise acquire any of its capital stock. Except for this Agreement, there are no registration rights, and there is no voting trust, proxy, rights plan, anti-takeover plan or other agreements or understandings with respect to the shares of Company Common Stock or Company Preferred Stock.
(c) The outstanding shares of capital stock (or other equity interests) of each of the Company Subsidiaries have been duly authorized and validly issued and (if applicable) are fully paid and nonassessable (where such concepts are applicable) and have not been issued in violation of any preemptive or similar rights. The Company or one or more of its wholly owned Subsidiaries own of record and beneficially all the issued and outstanding shares of capital stock (or other equity interests) of such Company Subsidiaries free and clear of any Liens other than (i) as may be set forth on Schedule 4.3(c); (ii) for any restrictions on sales of securities under applicable securities laws; and (iii) Permitted Liens. There are no outstanding options, warrants, rights or other securities convertible into or exercisable or exchangeable for any shares of capital stock (or other equity interests) of such Company Subsidiaries, any other commitments or agreements providing for the issuance of additional shares (or other equity interests), the sale of treasury shares, or for the repurchase or redemption of such Company Subsidiaries’ shares of capital stock (or other equity interests), or any agreements of any kind which may obligate any Company Subsidiary Securitiesto issue, purchase, register for sale, redeem or otherwise acquire any of its shares of capital stock (or other equity interests). Except for the equity interests of the Company Subsidiaries set forth on Schedule 4.2(a) of the Company Disclosure Letter and as otherwise set forth on Schedule 4.3(c) of the Company Disclosure Letter, neither the Company nor any of its the Company Subsidiaries owns owns, directly or indirectly indirectly, any equity interests ownership, equity, profits or voting interest in any Person, Person or has have any obligation agreement or commitment to acquire purchase any such equity interestsinterest, and has not agreed and is not obligated to make nor is bound by any written, oral or other Contract, binding understanding, option, warranty or undertaking of any nature, as of the date hereof or as may hereafter be in effect under which it may become obligated to provide funds to make, any future investment in or make any investment (in the form of a loan, capital contribution to any other entity.
(d) Except as provided for in this Agreement, as a result of the consummation of the Transactions, no shares of capital stock, warrants, options or otherwise) in any Subsidiary other securities of the Company are issuable and no rights in connection with any shares, warrants, options or any other Person. There are not outstanding obligations to which securities of the Company accelerate or any of its Subsidiaries is a party restricting the transfer ofotherwise become triggered (whether as to vesting, exercisability, convertibility or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesotherwise).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Revolution Medicines, Inc.), Merger Agreement (CM Life Sciences III Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares an unlimited number of Company Common Stock and 10,000,000 shares of Company Preferred StockShares without par value. At the close of business on July 26, 2016, the date of this Agreement (i) 28,746,664 shares of 12,336,333 Company Common Stock Shares were issued and outstanding, all of which are validly issued, fully paid and nonassessable; (ii) no shares Company Common Shares were held by subsidiaries of Company Preferred Stock were issued and outstandingCompany; (iii) 4,826,402 no Company Common Shares were held by the Company in its treasuryavailable for future issuance pursuant to Company's ESPP; (iv) an aggregate of 4,390,772 shares of 439,246 Company Stock Common Shares were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to upon the exercise of outstanding options to purchase Company Common Shares under the Management Stock Awards or vesting Option Plan; (v) 160,000 Company Common Shares were reserved for issuance upon the exercise of outstanding options to purchase Company RSU Awards will be (when issued Common Shares under the management stock option agreements referred to in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a2.3(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Schedule; (vi) no Company Common Shares were available for future grant under the Management Stock subject to such Company Stock Award, the date Option Plan; (vii) 2,597,802 Shares were reserved for future issuance upon conversion of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary warrants of the Company (the items "WARRANTS"); and (viii) 3,091,143 Company Common Shares were reserved for future issuance pursuant to the Stock Option Agreement. No Company Preferred Shares are authorized, issued or outstanding, and no rights under the ESPP are outstanding or will be outstanding as of the Effective Time. Section 2.3(a) of the Company Schedule sets forth the following information with respect to each Warrant and Company Stock Option (as defined in clauses Section 6.6) outstanding as of the date of this Agreement: (i), ) the name and address of the holder or optionee; (ii) and the particular plan pursuant to which such Company Stock Option was granted; (iii), together with ) the capital stock number of Company Common Shares subject to such Subsidiaries, being referred to collectively as “Subsidiary Securities”) Warrant or Company Stock Option; (iv) obligations the exercise price of such Warrant or Company Stock Option; (v) the date on which such Warrant or Company Stock Option was granted; (vi) the applicable vesting schedule; (vii) the date on which such Warrant or any Company Stock Option expires; and (viii) whether the exercisability of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the such Warrant or Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests Stock Option will be accelerated in any Personway by the transactions contemplated by this Agreement, or and indicates the extent of acceleration. Company has any obligation made available to acquire any such equity interests, or to provide funds to or make any investment (in the form Parent accurate and complete copies of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations all Warrants and stock option plans pursuant to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.Company
Appears in 2 contracts
Sources: Acquisition Agreement (Peregrine Systems Inc), Acquisition Agreement (Peregrine Systems Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (i) 145,000,000 shares of common stock of the Company, par value $0.01 per share (the “Company Common Stock”), and (ii) 5,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”). The rights and privileges of the Company Common Stock and 10,000,000 shares of the Company Preferred StockStock are as set forth in the Company’s certificate of incorporation as currently in effect. At the close of business on July 26December 1, 2016, 2020 (ithe “Capitalization Date”): (A) 28,746,664 53,822,535 shares of Company Common Stock were issued and outstanding; (iiB) no an aggregate of 1,048,858 shares of Company Common Stock were subject to outstanding Company RSU Awards; (C) an aggregate of 1,252,266 shares of Company Common Stock were subject to outstanding Company PSU Awards (assuming maximum achievement); (D) an aggregate of 699,297 shares of Company Common Stock were reserved by the Company for issuance under the ESPP; and (E) zero shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by . Since the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until Capitalization Date through the date hereof, other than vesting of Company Equity Awards pursuant to the existing terms of such awards, neither the Company nor any of its Subsidiaries has issued (1) issued, delivered, sold, announced, pledged, transferred, subjected to any shares Lien or granted or otherwise encumbered or disposed of its capital stockany Company Securities or incurred any obligation to make any payments to any Person based on the price or value of any Company Securities or (2) established a record date for, has granted declared, set aside for payment or paid any optionsdividend on, restricted stock, stock appreciation rights, warrants or rights or entered into made any other agreements or commitments to issue any shares of its capital stock, or granted any other awards distribution in respect of of, any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be Securities.
(when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(ab) Part 4.05(b) of the Company Disclosure Letter contains a true, correct and complete listSchedule sets forth, as of the date hereofclose of business on the Capitalization Date, a complete and correct list of (i) all outstanding Company Stock RSU Awards, indicating as applicable, with respect to each Company Stock Award then outstandingincluding the respective name of the holder, the type of Company Stock Award grantedgrant date, the vesting schedule, terms and conditions, the number of shares of Company Common Stock subject to each Company RSU Award and the distribution dates for such shares and (ii) all outstanding Company Stock AwardPSU Awards, including the respective name of the holder, the grant date, the vesting schedule, terms and conditions, the performance period, and the maximum number of shares of Company Common Stock subject to each Company PSU Award.
(c) Except as set forth in this Section 4.05, and for changes since the Capitalization Date resulting from settlement of Company Equity Awards outstanding on such date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awardsgranted thereafter as permitted under Section 6.01(b)(iii), there are on the date hereof no outstanding (Ai) shares of capital stock or voting securities or other Equity Interests of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in other Equity Interests of the Company, (Biii) options, warrants, calls, pre-emptive rights, subscriptions, warrants or other rights or other agreements or commitments requiring arrangements to acquire from the Company to issueCompany, or other obligations or commitments of the Company to issue, transfer, dispose or sell any capital stock, stock or other voting securities or other ownership interests in (Equity Interests in, or any securities convertible into or exchangeable for capital stock or other voting securities or other ownership interests Equity Interests in) the Company (or, in each case, the economic equivalent thereof)Company, (Civ) obligations of restricted shares, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the Company to grantvalue or price of, extend or enter into any subscriptioncapital stock of, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in Equity Interests in, the Company (the items in clauses (A), (Bi)-(iv) and (C), together with the capital stock of the Company, being referred to collectively as the “Company Securities”), (v) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchasevoting trusts, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes proxies or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other similar agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in by which the Company or any of its Subsidiaries in exchange for ownership is bound with respect to the disposition or voting of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries or (vi) contractual obligations or commitments of any character restricting the transfer of, or requiring the registration for sale of, any Company Securities or any securities of the Company’s Subsidiaries. Neither the Company nor any of its Subsidiaries have issued any bonds, debentures, notes or other indebtedness (x) having the right to vote on any matters on which stockholders or equityholders of the Company or any of its Subsidiaries may vote (or which is convertible into into, or exchangeable for shares for, securities having such right), or (y) the value of which is directly based upon or derived from the capital stock or other stock, voting securities or ownership interests in any Subsidiary other Equity Interests of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, . There are no outstanding obligations or obligations commitments of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securitiesof the Company Securities except for acquisitions of shares of Company Common Stock by the Company as satisfaction of the applicable exercise price and/or withholding taxes pursuant to the terms of Company Equity Awards or in accordance with the existing terms of the ESPP. All Company Equity Awards and rights under the ESPP were granted in accordance with the applicable Company Stock Plans, the ESPP, all Applicable Laws, and all applicable securities exchange rules. All Company Equity Awards are evidenced by written award agreements, in each case, substantially in the forms that have been Made Available to Parent. No Subsidiary of the Company owns any Company Securities.
(d) All outstanding shares of capital stock of the Subsidiaries of Company Common Stock have been, and all shares that may be issued pursuant to the Company have been Stock Plan or the ESPP, when issued in accordance with the respective terms thereof, duly authorized and validly issued and are (or, in the case of shares that have not yet been issued, will be) fully paid and paid, nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither and were not issued in violation of and are not subject to any right of rescission or right of first refusal, and have been offered, issued, sold and delivered by the Company nor any in compliance with all requirements of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries SecuritiesApplicable Law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Alaska Communications Systems Group Inc), Agreement and Plan of Merger (Alaska Communications Systems Group Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 13,000,000 shares of Company Common Stock and 10,000,000 7,000,000 shares of Company preferred stock, no par value (“Preferred Stock”). At There are 8,999,995 shares of Common Stock outstanding, of which zero shares constitute Company Restricted Stock, and no shares of Preferred Stock outstanding.
(b) 764,896 shares of Common Stock are subject to issuance pursuant to Company Options and 235,104 shares of Common Stock are reserved for future issuance pursuant to equity awards not yet granted under the close Company Option Plan.
(c) Section 3.05(c) of business on July 26the Seller Disclosure Schedule sets forth a complete and accurate list that sets forth with respect to each Company Option and each award of Company Restricted Stock outstanding immediately prior to the Closing (giving effect to all accelerated vesting triggered by the transactions described in this Agreement, 2016, but not giving effect to any exercise of such Company Options) the following information: (i) 28,746,664 shares the name of the holder of such Company Common Stock were issued and outstandingOption or Company Restricted Stock; (ii) no shares the type of award (whether a Company Option, award of Company Preferred Restricted Stock were issued and outstandingor another type of award); (iii) 4,826,402 Company Shares were held by the Company in its treasurynumber of shares of Common Stock subject to such award; (iv) an aggregate the per share exercise price (if any) of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and such award; (v) under the applicable vesting schedule, and the extent to which such award is vested and exercisable, if applicable; (vi) the date on which such award was granted; (vii) the date on which such award expires (if applicable); and (viii) if such award is a Company Stock PlansOption, there were 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 Buyer accurate and complete copies of all equity plans pursuant to which any outstanding Company Options to purchase 2,576,792 shares or awards of Company Common StockRestricted Stock were granted by the Company, and the forms of all agreements evidencing such Company Options and awards of Company Restricted Stock. All grants of Company Options and awards of Company Restricted Stock were recorded on the Company’s financial statements (including, any related notes thereto) in accordance with GAAP. There are no outstanding Company RSU Awards or authorized stock appreciation, restricted stock units, phantom stock, profit participation or similar rights or equity based awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. Company.
(d) All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), been duly authorized and validly issued and are fully paid and nonassessable non assessable. All Company Options and are free shares of preemptive rights. Section 4.2(a) Company Restricted Stock have been granted or issued in material compliance with all Applicable Laws and in accordance with the terms of the Company Disclosure Letter contains a true, correct Option Plan and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to agreement evidencing such Company Stock Award, the date of grant, exercise or purchase price Options and expiration thereofCompany Restricted Stock. Except for Company Options as set forth in Section 3.05(c) and the Company Stock AwardsShares set forth in Section 3.05(a), there are on the date hereof no outstanding (Ai) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or ownership interests in the Company, (Biii) options, warrants, calls, pre-emptive rights, subscriptions, rights warrants or other agreements or commitments requiring rights to acquire from the Company to issueor any other Person, or other obligations obligation of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items securities listed in clauses (i), (ii) and (iii), together with the capital stock ) of such Subsidiaries, this Section 3.05(d) being referred to collectively as the “Subsidiary Company Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company). There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Ellie Mae Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 Company Common Stock, Series A Junior Participating Preferred Stock, par value $.01 per share (the "Company Series A Preferred Stock"), and undesignated preferred stock, par value $.01 per share, of the Company (the "Company Undesignated Preferred Stock"). There are 50,000,000 shares of Company Common Stock authorized, and 10,000,000 shares as of Company Preferred Stock. At the close date of business on July 26, 2016this Agreement, (i) 28,746,664 12,581,216 shares of Company Common Stock were issued and outstanding; outstanding and (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all 4,554,504 shares of Company Common Stock that may be issued have been authorized and reserved for issuance, of which 4,350,000 have been reserved for issuance for grant pursuant to the Company Stock Option Plans, subject to adjustment on the terms set forth in the Company Stock Option Plans and 204,504 shares of Company Common Stock have been authorized and reserved for issuance upon the exercise of the Company Warrants. There are 500,000 shares of Company Series A Preferred Stock authorized, of which no shares are issued and outstanding as of the date of this Agreement. There are 9,500,000 shares of Company Undesignated Preferred Stock authorized, of which no shares are issued and outstanding as of the date of this Agreement. As of the date of this Agreement, there are outstanding options to purchase 2,711,864 shares of Company Common Stock under the Company Stock Awards or vesting Option Plans and options to purchase 1,638,136 shares of Company RSU Awards will be Common Stock available for grant. As of the date of this Agreement, there are outstanding warrants to purchase 104,504 shares of Company Common Stock (when issued in accordance with the terms thereof"Company Warrants").
(b) As of the date of this Agreement, duly authorized and validly the Company had no shares of Company Common Stock reserved for issuance other than as described above. All such issued and outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and paid, nonassessable and are free of preemptive rights. Section 4.2(a) of the The Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof has no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights obligations the holders of which have the right to vote (or which are convertible into or exercisable for securities having such rightsthe right to vote) with respect the shareholders of the Company on any matter. Except for the Company Options (all of which have been issued under the Company Stock Option Plans) and the Company Warrants, there are not at the date of this Agreement any existing options, warrants, calls, subscriptions, convertible securities, or other rights, agreements or commitments which obligate the Company to issue, transfer or sell any shares of capital stock of the Company. Section 4.3(b) of the Company Disclosure Schedule sets forth a full list of the Company Options, including the name of the Person to whom such Company Options have been granted, the number of shares subject to each Company Option, the per share exercise price for each Company Option, the date of grant of each Company Option and the vesting schedule for each Company Option. At the Effective Time, pursuant to the Company or any Company Subsidiary issued Stock Option Plans, the Assumed Options will be fully vested and outstanding. immediately exercisable.
(c) There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of any shares of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make which restrict the transfer of any investment (in the form of a loansuch shares, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of nor does the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear knowledge of any Lien (other than Permitted Liens), and there are no proxies third party agreements or understandings with respect to the voting of any such shares or which restrict the transfer of any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or contractual obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock or any other securities of the Subsidiaries Company. The Company is not under any obligation, contingent or otherwise, by reason of any agreement to register the offer and sale or resale of any of its securities under the Securities Act.
(d) Section 4.3(d) of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of Disclosure Schedule sets forth a loan, capital contribution or otherwise) in any Subsidiary full list of the Company or any other Person. There are not outstanding obligations Warrants, including the name of the Person to which whom each such Company Warrant has been issued, the number of shares subject to each Company or any Warrant, the per share exercise price for each Company Warrant, the date of its Subsidiaries is a party restricting grant of each Company Warrant and the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesvesting schedule for each Company Warrant.
Appears in 2 contracts
Sources: Merger Agreement (Ostex International Inc /Wa/), Merger Agreement (Inverness Medical Innovations Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 350,000,000 shares of Company Common Stock Stock, par value $0.0005 per share, and 10,000,000 5,000,000 shares of Company Preferred Stockpreferred stock, par value $.001 per share. At As of the close of business on July 26April 12, 2016, there were (i) 28,746,664 shares of Company Common Stock were issued and 135,614,317 Shares outstanding; (ii) no shares of preferred stock of the Company Preferred Stock were issued and outstanding; (iii) 4,826,402 38 Company Shares were held by Stock Option Awards outstanding, exercisable to purchase 168,601 shares of Company Stock in the aggregate, all of which are vested Company in its treasuryStock Option Awards; (iv) an aggregate of 4,390,772 4,068 Company RSU Awards outstanding, representing the right to receive 5,892,577 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under in the Company Stock Plans aggregate; and (v) under 177 Company Performance Share Awards outstanding, representing the Company Stock Plans, there were outstanding Company Options right to purchase 2,576,792 receive 1,858,584 shares of Company Common StockStock in the aggregate (assuming such awards vest at 100% of target). The Company does not have outstanding any bonds, and outstanding Company RSU Awards debentures, notes or other obligations that give the holders thereof the right to vote (or are convertible into or exercisable or exchangeable for securities having the right to vote) with respect to 1,813,980 shares the stockholders of Company Stock. From such date until the date hereof, neither the Company nor on any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be matter.
(when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. b) Section 4.2(a3.05(b) of the Company Disclosure Letter contains a true, correct and complete list, list by person as of the date hereofclose of business on April 12, 2016 of all Company Stock Option Awards, indicating as Company RSU Awards and Company Performance Share Awards, including the number of Company Stock Option Awards, Company RSU Awards and Company Performance Share Awards, the grant date, the exercise price (where applicable), the vesting date, and the maximum number of Shares that may be issued with respect to each Company Stock Option Award, Company RSU Award then outstandingand Company Performance Share Award. Except, (w) as set forth in Section 3.05(a), (x) for any Shares issued upon the type exercise of Company Stock Award granted, Option Awards and the number of shares vesting of Company Common Stock subject RSU Awards and Company Performance Share Awards set forth in Section 3.05(a), (y) pursuant to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock AwardsESPP, or (z) for any Company Securities the issuance of which was permitted by Section 5.01 or was consented to by Parent, there are on the date hereof no issued, reserved for issuance or outstanding (Ai) shares of capital stock or other voting securities of or other ownership interests in the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or other voting securities of or other ownership interests in the Company, (Biii) options, warrants, calls, pre-emptive rights, subscriptions, rights options or other agreements or commitments requiring rights to acquire from the Company to issueCompany, or other obligations obligation of the Company to issue, deliver, or sell any shares of capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or other voting securities of or other ownership interests in) in the Company or (oriv) restricted shares, in each casestock appreciation rights, the economic equivalent thereof)performance units, (C) obligations of contingent value rights, “phantom” stock or similar securities or rights issued or granted by the Company to grantor any of its Subsidiaries that are derivative of, extend or enter into provide economic benefits based, directly or indirectly, on the value or price of, any subscription, warrant, right, convertible or exchangeable security shares of capital stock or other similar agreement or commitment relating to any capital stock, voting securities of or other ownership interests in the Company (the items in clauses (A), i) through (B) and (Civ), together with the capital stock of Shares, Company Stock Option Awards, Company RSU Awards, Company Performance Share Awards and any other equity interests in the Company, being referred to collectively as the “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws).
(bc) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, and neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of maintains an employee stock purchase plan other than the Company or any other PersonESPP. There are not outstanding obligations to which Neither the Company or nor any of its Subsidiaries is a party restricting the transfer ofto any voting trust, proxy, voting agreement or limiting the exercise of voting rights other similar agreement with respect toto the voting of any Company Securities. All outstanding shares of capital stock of the Company have been, and all shares that may be issued pursuant to any Subsidiaries equity compensation plan or arrangement will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued, fully paid and non-assessable and free of preemptive rights. No Subsidiary of the Company owns any shares of capital stock of the Company or any Company Securities.
Appears in 2 contracts
Sources: Merger Agreement (Polycom Inc), Merger Agreement (Mitel Networks Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (i) 500,000,000 shares of Company Common Stock Stock, of which, as of the close of business on the business day immediately preceding the date of this Agreement (the “Measurement Date”), 109,890,095 shares were issued and 10,000,000 outstanding, and (ii) 15,000,000 shares of Company Preferred Stock, par value $0.0001 per share (together with Company Common Stock, “Company Capital Stock”), of which, as of the Measurement Date, no shares were issued and outstanding. At As of the close of business on July 26Measurement Date, 2016, (i) 28,746,664 no shares of Company Common Stock were issued and outstanding; (ii) held in the Company’s treasury. As of the Measurement Date, no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Capital Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all except for 3,339,084 shares of Company Common Stock that may be issued pursuant to reserved for issuance under the Company’s 1999 Stock Option/Stock Issuance Plan, 1999 Special Executive Stock Option/Stock Issuance Plan, 2000 Equity Incentive Plan (together with any other plan providing for the award of options or other equity rights, the “Company Stock Plans”), 1,483,577 shares of Company Common Stock reserved for issuance under the Company’s 2000 Employee Stock Purchase Plan as described in the Company Disclosure Letter (the “Company Employee Stock Purchase Plan”), 9,353,740 shares of Company Common Stock reserved for issuance upon the conversion of the Company Convertible Notes and 1,000,000 shares of the Company Common Stock reserved for issuance upon exercise of the Company Warrant outstanding Company Stock Awards or vesting on the date hereof. All of the issued and outstanding shares of Company RSU Awards will be (when issued in accordance with the terms thereof), Capital Stock have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights, with no personal liability attaching to the ownership thereof. Section 4.2(aAs of the date of this Agreement, except pursuant to this Agreement, the Company Stock Plans and as set forth in Sections 3.2(b) and 3.2(c), the Company does not have and is not bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase, issuance or registration of any shares of Company Capital Stock or any other equity securities of the Company Disclosure Letter contains or any securities representing the right to purchase or otherwise receive any shares of Company Capital Stock. The Company has provided Parent with a truelist of (i) each outstanding and unexercised option to purchase shares of Company Common Stock (“Company Stock Option”) granted pursuant to the Company Stock Plans, correct and complete list, as which list specifies (A) the name of the date hereof, holder of all such Company Stock AwardsOption, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, (B) the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof)Option, (C) obligations the exercise price of the such Company to grantStock Option, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the date on which such Company or any of its Subsidiaries Stock Option was granted, (E) the applicable vesting schedule, and the extent to make any payments based on the price or value which such Company Stock Option is vested and exercisable as of the Measurement Date, and (F) the date on which such Company Stock Option expires and (ii) the aggregate number of all shares of Company Common Stock that are a restricted stock right of any kind, contingent or accrued, granted under the Company Stock Plans (not including Company Stock Options) (“Company Restricted Stock”) outstanding as of the Measurement Date; since the Measurement Date through the date hereof, the Company has not issued or awarded any options, restricted stock or restricted stock units under the Company Stock Plans.
(b) As of the Measurement Date: 1,000,000 shares of Company Common Stock are subject to issuance pursuant to an outstanding warrant (the “Company Warrant”) to purchase Company Common Stock. There are on the date hereof no outstanding obligations Section 3.2(b) of the Company or any Disclosure Letter sets forth for the Company Warrant (i) the name of its Subsidiaries the holder of such Company Warrant, (ii) the number of shares of Company Common Stock subject to purchasesuch Company Warrant, redeem or otherwise acquire any (iii) the exercise price of such Company SecuritiesWarrant, (iv) the date on which such Company Warrant was granted, (v) to the extent applicable, the vesting schedule, and the extent to which such Company Warrant is vested and exercisable as of the Measurement Date, and (vi) the date on which such Company Warrant expires. There All shares of Company Common Stock subject to issuance under the Company Warrant, upon issuance on the terms and conditions specified in the instruments pursuant to which they are no issuable, would be duly authorized, validly issued, fully paid and nonassessable.
(c) No bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect the right to the Company or vote on any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to matters on which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock stockholders may vote of the Company is issued or (ii) outstanding contractual obligations to provide funds to or make any investment (in as of the form date hereof. As of a loanthe Measurement Date, capital contribution or otherwise) in the there were 9,353,740 shares of Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities reserved for issuance upon conversion of the $110,000,000 aggregate principal amount of the Company’s 2.50% Convertible Senior Notes due October 1, 2010 (the “Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsConvertible Notes”).
(bd) The Company or another All of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary “significant subsidiary” (as such term is defined under Regulation S-X of the Securities and Exchange Commission (the “SEC”)) of the Company are owned by the Company, directly or indirectly, free and clear of any Lien material liens, pledges, charges and security interests and similar encumbrances (other than Permitted “Liens”), and there are no proxies with respect to any all of such shares. There are no outstanding (i) securities of the Company shares or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or equity ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights. Except No such significant subsidiary has or is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for Subsidiary Securities, neither the Company nor purchase or issuance of any shares of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company stock or any other Person. There are not outstanding obligations to which the Company equity security of such subsidiary or any securities representing the right to purchase or otherwise receive any shares of its Subsidiaries is a party restricting the transfer of, capital stock or limiting the exercise any other equity security of voting rights with respect to, any Subsidiaries Securitiessuch subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Exult Inc), Merger Agreement (Hewitt Associates Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 700,000,000 shares of Company Common Stock, of which, as of December 15, 2010 (the “Company Capitalization Date”), 528,410,981 shares were issued and outstanding, and 5,000,000 shares of Company preferred stock, par value $1.00 per share (the “Company Preferred Stock”) of which, as of the Company Capitalization Date, 1,715,000 shares are designated as Series B Preferred Stock, 1,715,000 shares of which are issued and outstanding. As of the Company Capitalization Date, no shares of Company Common Stock and 10,000,000 shares of or Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 Stock were reserved for issuance except for shares of Company Common Stock were issued and outstanding; (ii) no reserved for issuance in connection with stock options under the Company Stock Plans to purchase not more than 31,573,185 shares of Company Preferred Common Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by outstanding as of the Company in its treasury; (iv) an aggregate of 4,390,772 Capitalization Date, 27,860,939 shares of Company Common Stock were reserved for issuance pursuant to outstanding future awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all 13,815,789 shares of Company Common Stock that may be issued reserved for issuance upon the exercise of the Company Warrant and 104,096,963 shares of Company Common Stock reserved for issuance pursuant to the exercise Option Agreement. All of the issued and outstanding Company Stock Awards or vesting shares of Company RSU Awards will be (when issued in accordance with the terms thereof), Common Stock have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights, with no personal liability attaching to the ownership thereof. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as As of the date hereofof this Agreement, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights the right to vote on any matters on which shareholders may vote (“Voting Debt”) of Company are issued or convertible into outstanding. As of the Company Capitalization Date, except pursuant to this Agreement, the Company Warrant and the Option Agreement, under the Company Stock Plans as set forth herein, and Company’s dividend reinvestment plan, Company does not have and is not bound by any outstanding subscriptions, options, warrants, calls, rights, commitments or agreements of any character calling for the purchase or issuance of, or the payment of, any amount based on, any shares of Company Common Stock other than under the 1994 LTIP, Company Preferred Stock, Voting Debt or any other equity securities having such rights) with respect to the of Company or any securities representing the right to purchase or otherwise receive any shares of Company Subsidiary issued and outstandingCommon Stock, Company Preferred Stock, Voting Debt or other equity securities of Company. There As of the Company Capitalization Date, except for the Option Agreement, there are no contractual obligations of Company or any of its Subsidiaries (i) voting trusts to repurchase, redeem or otherwise acquire any shares of capital stock of Company or any equity security of Company or its Subsidiaries or any securities representing the right to purchase or otherwise receive any shares of capital stock or any other agreements equity security of Company or understandings its Subsidiaries or (ii) except in connection with the Company Warrant, pursuant to which the Company or any of its Subsidiaries is a party with respect or could be required to the voting register shares of Company capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including under the Securities Act and of 1933, as amended (the “blue sky” lawsSecurities Act”).
(b) The Other than awards under the Company Stock Plans and the 1994 LTIP that are outstanding as of the Company Capitalization Date, no other equity-based awards are outstanding as of the Company Capitalization Date. Since the Company Capitalization Date through the date hereof, Company has not (i) issued or another repurchased any shares of Company Common Stock, Company Preferred Stock, Voting Debt or other equity securities of Company, other than the issuance of shares of Company Common Stock as salary, the withholding of such shares and the grant of restricted shares on December 15, 2010 to those individuals whose compensation has been modified consistent with restrictions under the Troubled Asset Relief Program or in connection with the exercise of Company Stock Options or settlement in accordance with their terms of the Company Stock Plans that were outstanding on the Company Capitalization Date or (ii) issued or awarded any options, stock appreciation rights, restricted shares, restricted stock units, deferred equity units, awards based on the value of Company capital stock or any other equity-based awards. From September 30, 2010 through the date of this Agreement, neither Company nor any of its Subsidiaries is has (A) accelerated the record and beneficial owner vesting of all or lapsing of restrictions with respect to any stock-based compensation awards or long-term incentive compensation awards, (B) with respect to executive officers of Company or its Subsidiaries, entered into or amended any employment, severance, change of control or similar agreement (including any agreement providing for the reimbursement of excise taxes under Section 4999 of the Code) or (C) adopted or amended any material Company Benefit Plan.
(c) All of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by Company, directly or indirectly, free and clear of any Lien material liens, pledges, charges, claims and security interests and similar encumbrances (other than Permitted “Liens”), and there are no proxies with respect to any all of such shares. There are no outstanding (i) securities of the Company shares or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or equity ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any No Significant Subsidiary of Company has or is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the Company purchase or issuance of any shares of capital stock or any other Person. There are not outstanding obligations to which the Company equity security of such Subsidiary or any securities representing the right to purchase or otherwise receive any shares of its Subsidiaries is a party restricting the transfer of, capital stock or limiting the exercise any other equity security of voting rights with respect to, any Subsidiaries Securitiessuch Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Marshall & Ilsley Corp), Merger Agreement (Bank of Montreal /Can/)
Capitalization. (a) The As of the date hereof, the authorized capital stock of the Company consists of 200,000,000 (A) 25,000,000 shares of Company Common Stock and 10,000,000 (B) 5,000,000 shares of Company Preferred Stock, of which 35,700 have been designated as Series A Preferred Stock and 5,000 shares have been designated as Series B Preferred Stock. At the close As of business on July 26December 23, 20161998, (i) 28,746,664 5,569,983 shares of Company Common Stock were issued and outstanding; , (ii) 35,700 shares of Series A Preferred Stock were issued and outstanding, (iii) 5,000 shares of Series B Preferred Stock were issued and outstanding, (iv) no shares of Company Common Stock or shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by in the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All treasury of the outstanding Company Shares have beenCompany, and all (vi) no shares of Company Common Stock that may be issued or Company Preferred Stock were held by Company Subsidiaries, (vii) 4,972,434 shares of Company Common Stock were reserved for future issuance upon conversion of the outstanding shares of Company Preferred Stock, (viii) 849,083 shares of Company Common Stock were reserved for future issuance pursuant to the outstanding Company Options, and (ix) 345,939 shares of Company Common Stock were reserved for future issuance upon exercise of Company Warrants. No material change in the capitalization of the Company has occurred between December 23, 1998 and the date hereof. No other capital stock of the Company is authorized or issued. All issued and outstanding shares of the Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof)are duly authorized, duly authorized and validly issued and are issued, fully paid and nonassessable and are free of preemptive rightsnon-assessable. Section 4.2(a) of Except as set forth in the Company Disclosure Letter contains a true, correct and complete listSecurities Filings (as hereinafter defined) filed prior to the date of this Agreement or as otherwise contemplated by this Agreement, as of the date hereof, there are no outstanding rights, subscriptions, warrants, puts, calls, unsatisfied preemptive rights, options or other agreements of all Company Stock Awards, indicating as applicable, with respect any kind relating to each Company Stock Award then any of the outstanding, the type of Company Stock Award granted, the number of authorized but unissued or treasury shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise capital stock or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities any other security of the Company Company, and there is no authorized or outstanding security of any kind convertible into or exchangeable for shares of any such capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests security. Except as disclosed in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred Securities Filings filed prior to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof of this Agreement, there are no outstanding obligations obligations, contingent or other, of the Company or any of its Subsidiaries Company Subsidiary to purchaserepurchase, redeem or otherwise acquire any shares of Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “any Company Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any such Company Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesentity.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Alarmguard Holdings Inc), Merger Agreement (Tyco International LTD /Ber/)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 400,000,000 shares of Company Common Stock and 10,000,000 100,000,000 shares of Company Preferred Stockpreferred stock. At As of July 20, 2012 (the close of business on July 26“Measurement Date”), 2016, (i) 28,746,664 50,394,437 shares of Company Common Stock were are issued and outstanding; (ii) , no shares of preferred stock are issued and outstanding and no shares of Company Preferred Common Stock were or preferred stock are held in the Company’s treasury or held by a Subsidiary of the Company. All outstanding Shares are, and any additional shares of Company Common Stock issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company after the date hereof and prior to the Effective Time will be, duly authorized and validly issued, fully paid and nonassessable, and not subject to any preemptive rights. Except as set forth in its treasury; (ivthis Section 3.3(a) an aggregate and for changes after the date hereof resulting from the vesting of 4,390,772 awards described in Section 3.3(b) and granted pursuant to Company Equity Plans outstanding on the date hereof, there are no outstanding shares of capital stock of or other voting securities or ownership interests in the Company. From the Measurement Date until the date of this Agreement, no shares of Company Common Stock were reserved for issuance or preferred stock have been issued, other than those shares issuable upon exercise of outstanding awards granted pursuant to outstanding awards and rights under the Company Stock Plans and Equity Plans.
(vb) under As of the date hereof (i) 472,503 Restricted Shares are outstanding pursuant to the Company Stock Equity Plans, there were (ii) 423,708 Restricted Share Units are outstanding pursuant to the Company Options Equity Plans, each such Restricted Share Unit entitling the holder thereof to purchase 2,576,792 shares receive one share of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all (iii) 2,842,688 shares of Company Common Stock that may be issued are authorized and reserved for future issuance pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rightsEquity Plans. Section 4.2(a3.3(b) of the Company Disclosure Letter contains a truecomplete and correct list (which shall be updated not later than five days prior to the Effective Time) of each outstanding award granted pursuant to the Company Equity Plans, correct and complete listincluding, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstandingthe holder, the type date of Company Stock Award grantedgrant, the vesting schedule and number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereofthereto. Except for the Company Stock Awardsas set forth above in this Section 3.3(b), there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsRights.
(bc) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Shares or Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, Stock Rights or to provide funds to pay any dividend or make any investment (other distribution in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Personrespect thereof. There are not outstanding obligations no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesto the voting of stock of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Railamerica Inc /De), Merger Agreement (Genesee & Wyoming Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 shares of 350,000,000 Company Common Stock Shares and 10,000,000 shares of preferred stock, par value $0.0001 per share (“Company Preferred Stock”). At As of November 2, 2015 (the close of business on July 26, 2016“Company Capitalization Date”), (ii)(A) 28,746,664 shares of 96,237,408 Company Common Stock Shares were issued and outstanding (including 319,633 Company Shares underlying Company RSAs), (B) no Company Shares were held in treasury, (C) no Company Shares were held by the Company Subsidiaries, (D) Company Options covering 7,527,902 Company Shares were outstanding; , with a weighted average exercise price per share of $24.24, and (E) Company RSUs covering 3,529,042 Company Shares were outstanding, (ii) 27,701,448 Company Shares were reserved for issuance pursuant to the Company Equity Plans, (iii) such number of Company Shares that may from time to time be issuable upon conversion of the Convertible Senior Notes were reserved for issuance by resolution of the Company Board of Directors, (iv) the maximum number of Company Shares issuable pursuant to the Warrants was 7,716,046 Company Shares, and (v) no shares of Company Preferred Stock were issued and or outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have beenare, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (Shares reserved for issuance as noted above shall be, when issued in accordance with the respective terms thereof), duly authorized and authorized, validly issued and are issued, fully paid and nonassessable non-assessable and are free of preemptive pre-emptive rights. .
(b) Section 4.2(a4.2(b) of the Company Disclosure Letter contains sets forth a true, correct true and complete list, as of the date hereofCompany Capitalization Date, of all Company Stock Awards, indicating as applicable, with respect to (i) each Company Stock Equity Award, (ii) the name of the Company Equity Award then outstandingholder, the type of Company Stock Award granted, (iii) the number of shares of Company Common Stock subject to such underlying each Company Stock Equity Award, (iv) the date of grant, exercise or purchase price and expiration thereof. Except for on which the Company Stock AwardsEquity Award was granted, there are on (v) the Company Equity Plan under which the Company Equity Award was granted, (vi) the vesting schedule with respect to the Company Equity Award, including any right of acceleration of such vesting schedule, (vii) the exercise price of each Company Equity Award, if applicable, and (viii) the expiration date of each Company Equity Award, if applicable (such schedule, the “Company Equity Schedule”).
(c) Except as set forth in Section 4.2(a) and Section 4.2(b) above, as of the date hereof no outstanding hereof: (Ai) securities of the Company convertible into or exchangeable for does not have any shares of capital stock or voting securities other equity interests issued or ownership interests outstanding other than the Company Shares that have become outstanding after the Company Capitalization Date, but were reserved for issuance as set forth in the CompanySection 4.2(a)(ii) above, and (Bii) there are no outstanding subscriptions, options, warrants, puts, calls, pre-emptive exchangeable or convertible securities or other similar rights, subscriptions, rights or other agreements or commitments requiring relating to the issuance of capital stock to which the Company to issue, or other obligations any of the Company Subsidiaries is a party obligating the Company or any of the Company Subsidiaries to (A) issue, transfer or sell any shares in the capital stock, voting securities or other ownership equity interests in (of the Company or any Company Subsidiary or securities convertible into or exchangeable for capital stock such shares or voting securities or equity interests (in each case other ownership interests in) than to the Company (or, in each case, the economic equivalent thereof), (C) obligations or a wholly owned Subsidiary of the Company to Company); (B) grant, extend or enter into any such subscription, option, warrant, rightput, call, exchangeable or convertible or exchangeable security securities or other similar right, agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and commitment; (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes such shares in its capital or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company equity interests; or (iiD) outstanding contractual obligations to provide a material amount of funds to to, or make any material investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issuein, any capital stock, voting securities or other ownership interests Company Subsidiary that is not wholly owned. Except as set forth in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (iiSection 4.2(a) and (iii)Section 4.2(b) above, together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There there are no outstanding obligations of the Company or any Company Subsidiary (i) restricting the transfer of, (ii) affecting the voting rights of, (iii) requiring the repurchase, redemption or disposition of, or containing any right of its Subsidiaries to purchasefirst refusal or similar right with respect to, redeem (iv) requiring the registration for sale of or otherwise acquire (v) granting any outstanding Subsidiary Securities. All of the outstanding preemptive or anti-dilutive rights with respect to, any shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any other equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any Company Subsidiary.
(d) Neither the Company nor any Company Subsidiary has outstanding bonds, debentures, notes or other Person. similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the Company Stockholders on any matter.
(e) There are not outstanding obligations no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries Company Subsidiary is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, to the voting of the capital stock or other equity interest of the Company or any Subsidiaries SecuritiesCompany Subsidiary.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Homeaway Inc), Agreement and Plan of Reorganization (Expedia, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 35,000,000 shares of Company Common Stock and 10,000,000 5,000,000 shares of Company Preferred Stockpreferred stock, $1.00 par value. At the close As of business on July 26October 24, 20162023, there are (i) 28,746,664 20,699,632 shares of Company Common Stock were issued and outstanding; , which number includes 33,486 shares of Company Common Stock granted in respect of outstanding Company Restricted Stock Awards, (ii) no shares of Company Preferred Stock were preferred stock issued and outstanding; , (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all 92,865 shares of Company Common Stock that may be issued pursuant to reserved for issuance upon the exercise of outstanding Company Stock Awards or vesting Options, (iv) 108,267 shares of Company Common Stock reserved for issuance upon the settlement of outstanding Company RSU Awards, and (v) 67,155 shares of Company Common Stock reserved for issuance upon the settlement of outstanding Company PSU Awards will be (when assuming satisfaction of performance goals in respect of incomplete performance periods at the target level). As of the date of this Agreement, except as set forth in the immediately preceding sentence, and for changes since October 24, 2023, resulting from the exercise, vesting or settlement of any Company Equity Awards described in the immediately preceding sentence, there are no other shares of capital stock or other voting securities of the Company issued, reserved for issuance or outstanding.
(b) All of the issued in accordance with the terms thereof), and outstanding shares of Company Common Stock have been duly authorized and validly issued and are fully paid and paid, nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect no personal liability attaching to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration ownership thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (that have the right to vote on any matters on which shareholders of the Company may vote. Except as set forth on Section 3.2(b) of the Company Disclosure Schedule, no trust preferred or subordinated debt securities of the Company are issued or outstanding. Other than Company Equity Awards issued prior to the date of this agreement, there are no outstanding subscriptions, options, warrants, puts, calls, rights, exchangeable or convertible into securities having such rights) with respect to or other commitments or agreements obligating the Company to issue, transfer, sell, purchase, redeem or otherwise acquire, any Company Subsidiary issued such securities, and outstanding. There there are no other equity based awards (i) voting trusts including any cash awards where the amount of payment is determined in whole or other agreements or understandings to which in part based on the price of any capital stock of the Company or any of its Subsidiaries is a party Subsidiaries) outstanding. There are no voting trusts, shareholder agreements, proxies or other agreements in effect with respect to the voting or transfer of the Company Common Stock or other equity interests of Company. No Subsidiary of the Company owns any shares of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” lawsCompany.
(bc) The Company owns, directly or another indirectly, all of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the CompanyCompany Subsidiaries, free and clear of any Lien liens, pledges, charges, encumbrances, and security interests whatsoever (other than Permitted “Liens”), and there are no proxies with respect to any all of such shares. There are no outstanding (i) securities of the Company shares or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or equity ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid paid, nonassessable (except, with respect to bank Subsidiaries, as provided under 12 U.S.C. § 55 or any comparable provision of applicable federal or state law) and nonassessable and are free of preemptive rights, with no personal liability attaching to the ownership thereof. Except No Company Subsidiary has or is bound by any outstanding subscriptions, options, warrants, calls, rights, commitments or agreements of any character calling for Subsidiary Securities, neither the Company nor purchase or issuance of any shares of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company stock or any other Person. There are not outstanding obligations to which the Company equity security of such Subsidiary or any securities representing the right to purchase or otherwise receive any shares of its Subsidiaries is a party restricting the transfer of, capital stock or limiting the exercise any other equity security of voting rights with respect to, any Subsidiaries Securitiessuch Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Old National Bancorp /In/), Merger Agreement (CapStar Financial Holdings, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 200,000,000 (i) 250,000,000 shares of Company Common Stock and 10,000,000 (ii) 5,000,000 shares of Company Preferred Stock. At As of March 31, 2015 (the close of business on July 26, 2016“Capitalization Reference Date”), (iA) 28,746,664 56,865,368 shares of Company Common Stock were issued and outstanding; , (iiB) no shares of Company Preferred Stock were issued and outstanding; outstanding or held by the Company as treasury shares and (iiiC) 4,826,402 no shares of Company Shares Common Stock were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to as treasury shares. All outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common StockStock were validly issued, fully paid, nonassessable and outstanding Company RSU Awards with respect to 1,813,980 shares free of Company Stockany preemptive rights. From such date until Since the Capitalization Reference Date through (and including) the date hereofof this Agreement, neither the Company nor any of its Subsidiaries has not issued any shares of its capital stock, has granted Company Capital Stock other than pursuant to Company Restricted Stock Units or the exercise of Company Options or pursuant to the Company ESPP or any options, restricted stock, stock appreciation rights, warrants 401(k) plans maintained by the Company or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All Subsidiaries.
(b) Section 3.4(b) of the outstanding Company Shares have beenDisclosure Letter sets forth, and all as of the Capitalization Reference Date, (i) the aggregate number of shares of Company Common Stock that may be issued pursuant are subject to Company Options, (ii) the exercise aggregate number of outstanding Company Stock Awards or vesting shares of Company RSU Awards will be Common Stock that are subject to Company Restricted Stock Units, (when issued in accordance with iii) the terms thereof)name or identification number of each holder, duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a(iv) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to each Company Option and Company Restricted Stock Unit, (v) the grant date of each Company Option and Company Restricted Stock Unit and (vi) the exercise price for each Company Option (in the case of clauses, (iii), (iv) and (v), on a holder-by-holder basis). The Company shall provide Parent, within three (3) Business Days prior to the anticipated Closing Date, a complete and correct list, as of such date, of all holders of Company Options and Company Restricted Stock Units, specifying, on a holder-by-holder basis, (i) the name of each holder, (ii) the number of Shares subject to each Company Option and Company Restricted Stock Unit, (iii) the grant date of each Company Option and Company Restricted Stock Unit, (iv) the exercise price for each Company Option, (v) the vesting schedule of each Company Option and Company Restricted Stock Unit, (vi) the settlement schedule of each Company Restricted Stock Unit, (vii) the Company Stock Award, Plan under which each Company Option and Company Restricted Stock Unit was issued and (viii) the expiration date of each Company Option. Since the Capitalization Reference Date through (and including) the date of grantthis Agreement, exercise or purchase price and expiration thereof. Except for the Company has not granted any Company Compensatory Awards. Each outstanding Company Compensatory Award was granted subject to the terms of a Company Plan. As of the Capitalization Reference Date, 2,397,441 shares of Company Common Stock Awardswere reserved for future issuance pursuant to stock awards not yet granted under the Company Plans. All Company Compensatory Awards have been, in all material respects, validly issued and properly approved by the Company Board in accordance with all Applicable Law, and the Company Plans and all Company Compensatory Awards have been, in all material respects, properly accounted for in accordance with GAAP on the consolidated audited financial statements of the Company and its Subsidiaries filed in or furnished with the SEC Reports.
(c) Except as set forth in this Section 3.4, there are on the date hereof (i) no outstanding shares of capital stock of, or other equity or voting interest in, the Company, (Aii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting securities or ownership interests in interest in, the Company, (Biii) no outstanding options, stock appreciation rights, warrants, calls, pre-emptive rights, subscriptionsrestricted stock units, rights or other commitments or agreements or commitments requiring to acquire from the Company to issueCompany, or other obligations of that obligates the Company to issue, any capital stockstock of, voting securities or other ownership interests in (equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting securities or other ownership interests interest in) the Company (or, in each case, the economic equivalent thereof)Company, (Civ) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment (whether payable in equity, cash or otherwise) relating to any capital stockstock of, voting securities or other ownership interests in equity or voting interest (including any voting debt) in, the Company (the items in clauses (Ai), (Bii), (iii) and (Civ), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or and (Dv) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common StockSecurities. There are on the date hereof no outstanding obligations Contracts of any kind which obligate the Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(bd) The Company Other than this Agreement or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary SecuritiesVoting Agreements, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party to any Contracts restricting the transfer of, relating to the voting of, requiring registration of, or limiting the exercise granting any preemptive rights, anti-dilutive rights or rights of voting first refusal or similar rights with respect to, to any Subsidiaries Securitiessecurities of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Microchip Technology Inc), Merger Agreement (Micrel Inc)
Capitalization. (a) The authorized capital stock of the Company consists solely of 200,000,000 100,000,000 shares of Company Common Stock and 10,000,000 25,000,000 shares of Company Preferred Stockpreferred stock. At As of the close of business on July 26August 30, 20162004, (ia) 28,746,664 shares of Company Common Stock 19,650,329 Shares were issued and outstanding; , all of which were duly authorized, validly issued, fully paid and nonassessable and none of which were issued in violation of any preemptive or similar rights, (iib) 432,727 shares of Common Stock were held in the treasury of the Company, (c) no shares of Company Preferred Common Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by any of the Company in its treasury; Subsidiaries, (ivd) an aggregate of 4,390,772 no shares of Company preferred stock were outstanding, (e) 3,850,776 shares of Common Stock were reserved for future issuance pursuant to stock options granted and outstanding awards and rights under pursuant to the Company Stock Option Plans and (vf) under 400,498 shares of Common Stock were reserved for future issuance pursuant to the Employee Stock Purchase Plan (the Employee Stock Purchase Plan, together with the Company Stock Option Plans, there were outstanding Company Options being referred to purchase 2,576,792 shares of Company Common Stockhereinafter collectively as the "Stock Incentive Plans"). Since August 30, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof2004, neither the Company nor any of its Subsidiaries has not issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue than any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of Common Stock issued upon the outstanding Company Shares have been, and all shares valid exercise of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued Options in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rightsor granted any stock options. Section 4.2(a) Set forth on Schedule 3.03-1 of the Company Disclosure Letter contains Schedule is a true, correct complete and complete list, as accurate description of the date hereofgrant date, of all Company Stock Awardsvesting schedule, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Common Stock available under, strike or exercise price and holder of each outstanding grant of options to acquire shares of Common Stock pursuant to the Company Stock Option Plans and the Company Stock Option Plan and related program, if applicable, under which such options were granted. Each outstanding grant of options under any of the Company Stock Option Plans is evidenced by a Stock Option Agreement. Parent has been furnished with a true and complete copy of each form of Stock Option Agreement evidencing an outstanding option grant. No outstanding grant of options has been made which varies from such forms. Each election to purchase shares of Common Stock under the Employee Stock Purchase Plan is evidenced by an enrollment form as prescribed by the plan administrator of the Employee Stock Purchase Plan. Except for the options and rights to purchase shares of Common Stock granted under the Stock Incentive Plans as expressly set forth in this Section 3.03 and except as set forth on Schedule 3.03-2 of the Company Disclosure Schedule, there are no outstanding options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or any Subsidiary (provided that such representation with respect to the issued capital stock of the Company or any Subsidiary shall be made to the Company's knowledge where neither the Company nor any Subsidiary is party to such option, warrant or other right, agreement, arrangement or commitment) or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or other equity interests in, the Company or any Subsidiary. All shares of Common Stock subject to such Company Stock Awardissuance as aforesaid, upon issuance on the date of grantterms and conditions specified in the agreements pursuant to which they are issuable, exercise or purchase price will be duly authorized, validly issued, fully paid and expiration thereofnonassessable. Except for as set forth on Schedule 3.03-3 of the Company Stock AwardsDisclosure Schedule, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, contractual or other obligations of the Company or any Subsidiary to issuerepurchase, redeem, otherwise acquire or pay any amounts in connection with any Shares or any capital stockstock of, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such interests in, any Subsidiary. All Each outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares share of capital stock of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable and, except as set forth on Schedule 3.03-4 of the CompanyCompany Disclosure Schedule, each such share owned by the Company or any Subsidiary is free and clear of any Lien (other than Permitted Liens)all security interests, and there are no proxies with respect to any such shares. There are no outstanding (i) securities liens, claims, pledges, options, tag along rights, rights of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of first refusal, agreements, limitations on the Company's or such other Subsidiary's voting rights, (ii) options, restricted stock, warrants, rights or charges and other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value encumbrances of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securitiesnature whatsoever.
Appears in 2 contracts
Sources: Merger Agreement (Computer Access Technology Corp), Merger Agreement (Lecroy Corp)