Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement. (b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts. (c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 3 contracts
Sources: Merger Agreement (Stmicroelectronics Nv), Merger Agreement (Genesis Microchip Inc /De), Merger Agreement (Genesis Microchip Inc /De)
Capitalization. Except as otherwise disclosed in the Company Filed SEC Documents (aas defined below):
(1) The As of the date hereof, the authorized capital stock of the Company consists of 100,000,000 Shares 26,666,667 million shares of Common Stock and 5,000,000 million shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007the date hereof, (i) 38,012,846 Shares are 14,992,657 shares of Common Stock were issued and outstanding, all (ii) no shares of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are Common Stock were held in by the treasury Company or by any of the Company. As of December 8, 2007's Subsidiaries, (iiii) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are 607,004 shares of Common Stock were reserved for future issuance pursuant to outstanding Company Options, (iv) 932,469 shares of Common Stock Options and Company Stock Awards granted were reserved for issuance pursuant to the Company Stock Plans Option Plans, and the ESPP. As of the date of this Agreement, (vi) no shares of Company Preferred Stock are issued and were issued, reserved for issuance or outstanding. Except as set forth in this Section 4.03above, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27such date, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments 16,532,130 shares of any character relating to the issued or unissued capital stock or other type of equity interests or voting securities of the Company are issued, reserved for issuance or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any outstanding. 14,992,657 outstanding shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 are, and 1,539,473 shares of the Disclosure Letter sets forth the following information with respect to each Company Common Stock Option and Company Stock Award outstanding as of December 8which may be issued will, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the awardwhen issued, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenonassessable and not subject to preemptive rights. There are not any bonds, debentures, notes or other Indebtedness or debt securities 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 required under this Agreement, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which any of them is bound 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 or other equity or voting securities of the Company or of any of its Subsidiaries or obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. There are no outstanding contractual obligations rights, commitments, agreements, arrangements or undertakings of any kind obligating the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests dispose of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other equity or voting securities of the Company or any of its Subsidiaries or any securities of the type of equity interests of each Subsidiary have been issued and granted described in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsthe two immediately preceding sentences, except under employment arrangements entered into prior to the date hereof.
(c2) Each All of the outstanding share Equity Interests of capital stock or other type of equity interests of each Subsidiary is ION were duly authorized, authorized for issuance and validly issued, fully paid and nonassessablepaid, and non-assessable. Except to be issued pursuant to this Agreement and Restructuring Documents, there is no existing option, warrant, call, right, or Contract of any character to which ION is a party or as to which ION has knowledge requiring, and there are no securities of ION outstanding which upon conversion or exchange would require, the issuance of any equity interest of ION or other securities convertible into, exchangeable for or evidencing the right to subscribe for Equity Interests of ION.
(3) All of the outstanding Equity Interests of ION’s Subsidiaries were duly authorized for issuance and validly issued, fully paid, and non-assessable. ION owns, directly or indirectly, 100% of the ownership interests in each such share is owned by the Company or another Subsidiary of its Subsidiaries free and clear of any and all security interestsLiens, liensexcept for Permitted Liens and Liens arising under the Indenture and/or the Credit Agreement as of the date of this Agreement. There is no existing option, claimswarrant, pledgescall, optionsright, rights of first refusal, agreements, limitations on the Company’s or any Subsidiary’s voting rights, charges and other encumbrances Contract of any nature whatsoevercharacter to which any of ION’s Subsidiaries is a party or as to which ION or ION’s Subsidiaries have knowledge requiring, and there are no securities of any of ION’s Subsidiaries outstanding which upon conversion or exchange would require, the issuance of any Equity Interests of any of ION’s Subsidiaries or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase Equity Interests of any of ION’s Subsidiaries.
Appears in 3 contracts
Sources: Restructuring Support Agreement (Ion Geophysical Corp), Restructuring Support Agreement (Ion Geophysical Corp), Restructuring Support Agreement (Ion Geophysical Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 200,000,000 shares of Company Common Stock and 5,000,000 shares of preferred stock, no par value $0.001 per share share, of the Company (“Company Preferred Stock”). As of December 7January 1, 20072006, (i) 38,012,846 Shares are 119,297,468 shares of Company Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are no shares of Company Preferred Stock were issued and outstanding, (iii) 16,709,252 shares of Company Common Stock were reserved for future issuance pursuant to outstanding Company Options, (iv) no shares of Company Common Stock were reserved for issuance under the Company’s 1995 Stock Plan, (v) no shares of Company Common Stock were reserved for issuance under the Company’s 1995 Director Option Plan, and (vi) 6,687,706 shares of Company Common Stock were reserved for issuance under the Company’s 2004 Equity Incentive Plan. No shares of capital stock of the Company are owned by any Subsidiary of the Company. All of the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable and free of preemptive and similar rights. Except as set forth above, there are no outstanding (i) shares of capital stock, debt securities or other voting securities of or ownership interests in the Company, (ii) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock, debt securities or voting securities of or ownership interests in the Company, (iii) subscriptions, calls, Contracts, commitments, understandings, restrictions, arrangements, rights, warrants, options or other rights to acquire from the Company or any Subsidiary of the Company, or obligations of the Company or any Subsidiary of the Company to issue any capital stock, debt securities, voting securities or other ownership interests in, or any securities convertible into or exchangeable or exercisable for any capital stock, voting securities, debt securities or ownership interests in, the Company, or obligations of the Company or any Subsidiary of the Company to grant, extend or enter into any such agreement or commitment or (iv) obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any outstanding securities of the Company, or to vote or to dispose of any shares of capital stock of the Company.
(b) Section 4.2(b) of the Company Disclosure Schedule sets forth a true, complete and correct list of all persons who, as of January 1, 2006, held outstanding Company Options and Company Stock Awards granted pursuant to under the Company Stock Plans or under any other equity incentive plan of the Company and its Subsidiaries, indicating, with respect to each Company Option then outstanding, the ESPP. As type of award granted, the number of shares of Company Common Stock subject to such Company Option, the name of the plan under which such Company Option was granted, the exercise price, date of grant, vesting schedule and expiration date thereof, including to the extent to which any vesting has occurred as of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, whether (and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (iwhat extent) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award Company Option will be accelerated in any way by the consummation of the transactions contemplated by this Agreement.
(b) 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. Since November 29, 1995, each Company Option has been granted with an exercise price equal to the fair market value of the shares of Company Common Stock subject to such Company Options on the date of grant. The Company has made available to Parent accurate true, complete and complete correct copies of all Company Stock Plans pursuant and the forms of all stock option agreements evidencing outstanding Company Options.
(c) There are no voting trusts or other agreements or understandings to which the Company has granted or any of its Subsidiaries is a party with respect to the Company Stock Options and Company Stock Awards that are currently outstanding and voting of the form shares of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations any capital stock of the Company or any Subsidiary to repurchase, redeem of its Subsidiaries. No agreement or otherwise acquire other document grants or imposes on any Shares or any shares of the capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure LetterCompany any right, there are no commitments preference, privilege or agreements of transfer restrictions with respect to the transactions contemplated by this Agreement (including any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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).
Appears in 3 contracts
Sources: Merger Agreement, Agreement and Plan of Merger (Pixar \Ca\), Merger Agreement (Walt Disney Co/)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 180,000,000 shares of Company Common Stock and 5,000,000 2,000,000 shares of preferred stock, no par value $0.001 per share (“Company Preferred Stock”)value, none of which preferred stock is outstanding. As of December 7the close of business on October 22, 20071999, (i) 38,012,846 Shares 59,877,313 shares of Company Common Stock are outstanding, (ii) not more than 7,156,363 shares of Company Common Stock are reserved for issuance pursuant to the Company's existing stock option agreements and plans and its 1994 Employee Stock Purchase Plan and 401(k) Savings Plan (such agreements and plans, collectively, the "Company Stock Plans"), (iii) 23,102,187 shares of Company Common Stock are held by the Company in its treasury or by its wholly owned Subsidiaries, and (iv) except as set forth in Section 4.3 of the Company Disclosure Schedule, no bonds, debentures, notes or other indebtedness having the right to vote (or convertible into securities having the right to vote) on any matters on which shareholders may vote ("Voting Debt") is issued or outstanding. All of the issued and outstanding, all outstanding shares of which Company Common Stock are validly issued, fully paid paid, nonassessable and nonassessable. As free of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPPpreemptive rights. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) 4.3 of the Company Disclosure LetterSchedule or as may be provided by the Company Stock Plans, there are no commitments outstanding subscriptions, options, calls, contracts, voting trusts, proxies or agreements other pledges, security interests, encumbrances, commitments, understandings, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any character to which the Company is bound outstanding security, instrument or other agreement, obligating the Company to accelerate the vesting of any Company Stock Option as issue, deliver or sell, pledge, grant a result of the Offer security interest or the Merger. All outstanding Sharesencumber, all outstanding Company Stock Options and Company Stock Awards and all outstanding or cause to be issued, delivered or sold, pledged or encumbered or a security interest to be granted on, shares of capital stock or other type any Voting Debt of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear of all security interestsobligating the Company to grant, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s extend or enter into any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoeversuch agreement or commitment.
Appears in 3 contracts
Sources: Merger Agreement (Sokol David L), Merger Agreement (Midamerican Energy Holdings Co /New/), Merger Agreement (Midamerican Energy Co)
Capitalization. (a) The authorized capital stock of the -------------- Company consists is as disclosed in the SEC Filings (as defined in Section 4.7). At the close of 100,000,000 Shares and 5,000,000 business on July 25, 1997, (a) 15,935,300 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are Common Stock were issued and outstanding, all and (b) 1,801,859 shares of which Common Stock were reserved for issuance upon exercise of Company Stock Options. All issued and outstanding shares of Common Stock have been duly authorized and are validly issued, fully paid paid, nonassessable and nonassessable. As free of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstandingpreemptive rights. Except as set forth in this Section 4.034.2 and on Schedule 4.2, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights date of this Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no outstanding securities, options, warrants or other warrants, calls, rights, commitments, agreements, arrangements or commitments undertakings of any character relating kind to the issued or unissued capital stock or other type of equity interests of which the Company or any Subsidiary of its subsidiaries is a party or by which any of them is bound (i) obligating the Company or any Subsidiary of its subsidiaries to issue issue, deliver, sell, transfer, repurchase, redeem or sell otherwise acquire or vote, or cause to be issued, delivered, sold, transferred, repurchased, redeemed or otherwise acquired or voted, any shares of capital stock of, or other type voting securities of equity interests inthe Company or of any of its subsidiaries, (ii) restricting the transfer of Common Stock or (iii) obligating the Company or any Subsidiaryof its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. Section 4.03 The Company is not aware of any voting trust, stockholder agreement or other similar arrangement relating to any shares of Common Stock. Schedule 4.2 sets forth a complete and correct list as of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as date hereof of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iiiw) the number of Shares subject options and warrants to purchase Common Stock outstanding and the award; number of shares of Common Stock issuable thereunder, (ivx) the exercise or purchase price of the awardeach such outstanding stock option and warrant, if any; (vy) the date on which the award was granted; vesting schedule of each such outstanding stock option (viit being understood that all such stock options shall become exercisable pursuant to Section 3.1(d)) and (z) the applicable vesting schedule; (vii) the date on which the award expires; grantee or holder of each such option and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awardswarrant. All Shares shares of Common Stock subject to issuance as aforesaid, 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 and nonassessable. There Except as is set forth on Schedule 4.2, there are no material outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any material investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary Company subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Sun Healthcare Group Inc), Merger Agreement (Sun Healthcare Group Inc), Merger Agreement (Regency Health Services Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 (i) 700,000,000 Shares, of which 375,494,375 Shares (including 1,132,568 Shares of Restricted Stock) were outstanding as of November 30, 2004 and 5,000,000 (ii) 2,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock”)share, none of which are outstanding. As of December 7November 30, 20072004, there were outstanding Company Options to purchase an aggregate of 69,422,758 Shares (i) 38,012,846 of which Company Options to purchase an aggregate of 43,279,336 Shares are were exercisable). Each outstanding Company Option and each Share of Restricted Stock was issued pursuant to a Company Plan. All outstanding shares of capital stock of the Company have been, and all shares that may be issued pursuant to the Company Plans will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and outstanding, all of which are validly issued, or then will be fully paid and nonassessable. As of December 10, 2007, .
(ib) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, Except (ix) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.035.05, and except (y) for the Merger Option and the rights (the “Company Rights”) issued pursuant to the Company’s First Amended and Restated Preferred Stock Share Rights Agreement, dated effective as of June 27December 16, 2002 1997 and amended as of December 26, 2002, between the Company and EquiServe Trust Company, N.A. (the “Rights Agreement”)) and (z) for changes since November 30, as amended 2004 resulting from the exercise of Company Options outstanding on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentsuch date, there are no options, warrants outstanding (i) shares of capital stock of or other rightsvoting securities or ownership interests in the Company, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests (ii) securities of the Company or any Subsidiary of its Subsidiaries convertible into or obligating exchangeable for shares of capital stock or other voting securities or ownership interests in the Company or (iii) options, warrants, calls, subscriptions, preemptive or other rights to acquire from the Company or any Subsidiary to issue or sell any shares of capital stock ofits Subsidiaries, or other type obligation of equity the Company or any of its Subsidiaries to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for capital stock or other voting securities or ownership interests in, the Company or any Subsidiary. Section 4.03 of (the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: items in clauses (i) the state or country in which the recipient resides; ), (ii) the particular plan pursuant to which the award was granted; and (iii) being referred to collectively as the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The “Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessableSecurities”). There are no outstanding contractual obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares of the Company Securities. There are no voting trusts, proxies or other similar agreements or understandings to which the Company or any capital stock of its Subsidiaries is a party or other type by which the Company or any of equity interests its Subsidiaries is bound with respect to the voting of any Subsidiary Company Securities. There are no contractual obligations or to provide funds tocommitments of any character restricting the transfer of, or make any investment (in requiring the form of a loan, capital contribution or otherwise) inregistration for sale of, any Subsidiary or any other person. Company Securities.
(c) Except as set forth in this Section 4.03(b) 5.05, no Shares are owned by any Subsidiary of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsCompany.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 3 contracts
Sources: Merger Agreement (Oracle Corp /De/), Merger Agreement (Peoplesoft Inc), Merger Agreement (Oracle Corp /De/)
Capitalization. (a) The As of the date hereof, the authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 of: (i) 2,000,000,000 shares of preferred stockCommon Stock, par value $0.001 0.0001 per share share, and (“Company ii) 20,000,000 shares of Preferred Stock”), par value $0.0001 per share, of which 5,000,000 shares are designated as Series A Convertible Preferred Stock and 2,500 are designated as Series B Preferred Stock. As of December 7, 2007the date hereof, (i) 38,012,846 Shares 1,474,473,903 shares of Common Stock are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchasenon-assessable, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) 4,250,579 shares of Series A Stock are issued and outstanding, all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is which are duly authorized, validly issued, fully paid and nonassessablenon-assessable, (iii) 1,795 shares of Series B Preferred Stock are issued and outstanding all of which are duly authorized, validly issued, fully paid and non-assessable; and (iv) 525,526,097 shares of Common Stock are reserved for future issuances. Except as disclosed in the Company’s publicly available filings with the SEC and as will be disclosed in the Registration Statement, and each such share is owned based on the best information available and efforts of the Company’s management, or as otherwise set forth on Schedule 4.3:
i. no shares of the Company’s capital stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company;
ii. there are no outstanding debt securities;
iii. there are no outstanding shares of capital stock, options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or another Subsidiary free and clear any of all security interestsits Subsidiaries, liensor contracts, claimscommitments, pledges, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of first refusalany character whatsoever relating to, agreementsor securities or rights convertible into, limitations on any shares of capital stock of the Company or any of its Subsidiaries;
iv. there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement);
v. there are no outstanding securities of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries;
vi. there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities as described in this Agreement;
vii. the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and
viii. there is no dispute as to the classification of any shares of the Company’s capital stock. The Company has furnished to the Investor, or any Subsidiarythe Investor has had access through E▇▇▇▇ to, true and correct copies of the Company’s voting rightsArticles of Incorporation and all amendments thereto, charges as in effect on the date hereof (the “Articles of Incorporation”), and other encumbrances the Company’s By-laws and all amendments thereto, as in effect on the date hereof (the “By-laws”), and the terms of any nature whatsoeverall securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto.
Appears in 3 contracts
Sources: Equity Financing Agreement (VNUE, Inc.), Equity Financing Agreement (VNUE, Inc.), Equity Financing Agreement (VNUE, Inc.)
Capitalization. (ai) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 shares of preferred stock(A) 75,000,000 shares, par value $0.001 NLG 1.00 per share share, of which 29,201,981 common shares are issued and outstanding and (“B) 1,000 priority shares, par value NLG 1.00 per share, of which none are outstanding and (ii) the Financing Trust has 5,740,000 TOPrS issued and outstanding. The Company Preferred Stock”). As Shares set forth in Section 2.2 of December 7, 2007, the disclosure schedule provided by the Company and attached hereto and made a part hereof (the "Company Disclosure Schedule") and (i) 38,012,846 Shares identified thereon as "Company Option Shares" are issued reserved for issuance upon exercise of outstanding Stock Options granted to directors, officers and outstandingemployees of the Company and its Subsidiaries pursuant to the Option Plans and (ii) identified thereon as "Company Conversion Shares", all are reserved for future issuance upon conversion of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 outstanding TOPrS. No Company Shares are held in the treasury of the Company. As No additional shares of December 8capital stock of the Company are issued or outstanding or reserved for issuance (except for Company Shares issued upon exercise of Stock Options granted as aforesaid and Company Shares reserved for issuance upon conversion of TOPrS), 2007and except as set forth in Section 2.2 of the Company 4
(b) Except as set forth in Section 2.2 of the Company Disclosure Schedule, (i) no Shares bonds, debentures, notes or other indebtedness or obligations of the Company or any of its Subsidiaries entitling the holders thereof to vote (or which are held by convertible into, or exercisable or exchangeable for, securities entitling the holders thereof to vote) with the shareholders of the Company or any of its Subsidiaries and on any matter are authorized, issued, reserved for issuance or outstanding, (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants warrants, calls, subscriptions, convertible or exchangeable securities, or other rights, agreements, arrangements agreements or commitments of any character relating obligating the Company or any of its Subsidiaries to the issued grant, issue, transfer or unissued sell, or cause to be granted, issued, transferred or sold, any shares of capital stock or any other type equity or voting security or equity or voting interest (or any securities convertible into, exchangeable for, or evidencing the right to subscribe for, any of equity interests the foregoing securities or interests), of the Company or any Subsidiary of its Subsidiaries or obligating the Company or any Subsidiary of its Subsidiaries to issue grant, issue, extend or sell enter into any shares of capital stock ofright, agreement or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information commitment with respect to each Company Stock Option and Company Stock Award outstanding as of December 8the foregoing, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There there are no outstanding contractual obligations (absolute, contingent or otherwise) of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares shares of capital stock, or other equity or voting security or equity or voting interest, of the Company or any capital stock or of its Subsidiaries and (iv) other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letterthan this Agreement, there are no commitments voting trusts, proxies or other agreements of any character or understandings to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound obligating with respect to the Company to accelerate the vesting voting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock stock, or any other type equity or voting security or interest, of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear any 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 whatsoeverits Subsidiaries.
Appears in 3 contracts
Sources: Acquisition Agreement (Abb Transportation Participations B V), Acquisition Agreement (Elsag Bailey Process Automation N V), Acquisition Agreement (Elsag Bailey Process Automation N V)
Capitalization. (a) The authorized capital stock of the Company consists -------------- of 100,000,000 Shares and 5,000,000 15,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Common Stock”). As of December 7June 2, 20071999, (i) 38,012,846 Shares are 8,444,377 shares of Common Stock were issued and outstanding, all (b) Options to purchase an aggregate of which 819,882 shares of Common Stock were outstanding, (c) 635,500 shares of Common Stock held by the Company in its treasury and (d) no shares of capital stock of the Company were held by the Company's Subsidiaries. The Company has no outstanding bonds, debentures, notes or other obligations entitling the holders thereof to vote (or that are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter. Since June 2, 1999, the Company (i) has not issued any shares of Common Stock other than upon the exercise of Options, (ii) has granted no Options to purchase shares of Common Stock under the Stock Option Plans and (iii) has not split, combined, converted or reclassified any of its shares of capital stock. All issued and outstanding shares of Common Stock are duly authorized, validly issued, fully paid paid, nonassessable and nonassessable. As free of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstandingpreemptive rights. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent6.4, there are no other shares of capital stock or voting ----------- securities of the Company, and no existing options, warrants warrants, calls, subscriptions, convertible securities, or other rights, agreements, arrangements agreements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of that obligate the Company or any Subsidiary or obligating the Company or any Subsidiary of its Subsidiaries to issue issue, transfer or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessableits Subsidiaries. There are no outstanding contractual obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares or any shares of capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary Company and there are no performance awards outstanding under the Stock Option Plans or any other personoutstanding stock-related awards. Except as set forth in Section 4.03(b) of the Disclosure Letter, there There are no commitments voting trusts or other agreements of any character or understandings to which the Company is bound obligating or any of its Subsidiaries or, to the Company to accelerate the vesting of any Company Stock Option as a result knowledge of the Offer Company, any of the Company's directors or executive officers is a party with respect to the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares voting of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear any 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 whatsoeverits Subsidiaries.
Appears in 3 contracts
Sources: Merger Agreement (Avery Dennison Corporation), Merger Agreement (Quad-C Inc), Merger Agreement (Stimsonite Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 120,000,000 shares, consisting of 100,000,000 Shares and 5,000,000 shares of Company Common Stock and 20,000,000 shares of Company preferred stock, par value $0.001 0.01 per share (“the "Company Preferred Stock”"). As of December 715, 20071996, (i) 38,012,846 Shares are 43,966,667 shares of Company Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007nonassessable and no shares were held in treasury, (iii) 67,000 Shares are no shares of Company Preferred Stock were issued and outstanding, (iii) no shares of Company Common Stock were held in the treasury by subsidiaries of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (iiiv) 6,628,083 Shares are 3,064,584 shares of Company Common Stock were reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards stock options granted pursuant to under the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstandingOption Plans. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as 2.03 or in Section 2.03 of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Schedule, there are no options, warrants or other rights, agreements, agreements or arrangements to which the Company is a party or commitments of any character by which the Company is bound relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary of its subsidiaries or obligating the Company or any Subsidiary of its subsidiaries to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreementits subsidiaries.
(b) The Company has made available to Parent accurate and complete copies Except as disclosed in Section 2.03 of all Company Stock Plans pursuant to which the Company has granted Disclosure Schedule or the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject to issuance as aforesaidSEC Reports, 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 there are no outstanding contractual obligations obligations, contingent or otherwise, of the Company or any Subsidiary of its subsidiaries to repurchase, redeem or otherwise acquire any Shares shares of Company Common Stock or any the capital stock or other type of equity interests of any Subsidiary subsidiary or to provide funds to, to or make any investment (in the form of a loan, capital contribution or otherwise) in, in any Subsidiary such subsidiary or any other person. Except as set forth entity other than guarantees of bank obligations of subsidiaries entered into in Section 4.03(b) the ordinary course of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsbusiness.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 3 contracts
Sources: Merger Agreement (Vons Companies Inc), Merger Agreement (Safeway Inc), Merger Agreement (Safeway Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 150,000,000 Company Shares and 5,000,000 15,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock. At the close of business on September 9, 2016 (the “Capitalization Date”). As of December 7, 2007, (i) 38,012,846 85,552,358 Company Shares are were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, ; (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (iii) no shares of Company Preferred Stock were issued and outstanding; (iii) no Company Shares are were held by the Subsidiaries Company in its treasury; (iv) under the Company Stock Plans, there were outstanding Company Options to purchase 9,104,697 Company Shares and outstanding Company RSU Awards with respect to 787,479 Company Shares; and (iiv) 6,628,083 an aggregate of 3,563,323 Company Shares are were reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the Company ESPP. Except as set forth in the preceding sentence, and other than the Company Convertible Notes, at the close of business on the Capitalization Date, there are no (A) outstanding shares of capital stock or other voting securities of or equity interests in the Company, or securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company (collectively, “Company Securities”), (B) outstanding rights that are linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Company or any of its Subsidiaries; or (C) Contracts under which the Company or any of its Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities. Except as set forth on Section 3.4(a) of the Disclosure Schedule, from the Capitalization Date until and including the date hereof, the Company has not issued any shares of its capital stock (other than in connection with the exercise of Company Options or vesting of Company RSU Awards outstanding as of the Capitalization Date), has not granted any options, restricted stock, stock units, 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 and has not split, combined or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been duly authorized and issued and are fully paid and nonassessable and are free of preemptive rights.
(b) Section 3.4(b) of the Disclosure Schedule contains a true, correct and complete list, as of the Capitalization Date, of the name of each holder of Company Options and Company RSU Awards, the number of outstanding Company Options and Company RSU Awards held by such holder, the grant date of each such Company Option and Company RSU Award, the corresponding exercise price of each Company Option and the expiration date of each Company Option.
(c) 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 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. None of the outstanding Company Shares are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right. None of the outstanding shares of Company common stock are subject to any right of first refusal in favor of the Company. There are no outstanding bonds, debentures, notes or other indebtedness of the Company having a right to vote on any matters on which the stockholders of the Company have a right to vote. There is no Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any Company Shares. 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.
(d) The Company or another of its Subsidiaries is the record and beneficial owner of all the outstanding shares of capital stock (or other equity securities, as applicable) of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), transfer restrictions, and there are no irrevocable proxies with respect to any such shares (or other equity securities, as applicable).
(e) The Company has no stockholder rights plans (or similar plan commonly referred to as a “poison pill”) or Contracts under which the Company or any of its Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities. As of the date of this Agreement, no shares the aggregate amount of Payments (as defined in the Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”Loan Agreement) issued pursuant made by or on behalf of Parent and/or any of Parent’s Subsidiaries to the Preferred Stock Rights Agreement, dated Lender (as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between defined in the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests Loan Agreement) in respect of the Company Tranche A Loan, Tranche B Loan or any Subsidiary or obligating Tranche C Loan (each as defined in the Company or any Subsidiary to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (iLoan Agreement) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreementequals $48,200,000.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Horizon Pharma PLC), Merger Agreement (Raptor Pharmaceutical Corp)
Capitalization. (a) The authorized capital stock of --------------- the Company consists of 100,000,000 30,000,000 Shares, 15,000,000 Class B Shares and 5,000,000 shares of preferred stockPreferred Stock, par value $0.001 .50 per share (“Company Preferred Stock”)share. As At the close of December 7business on February 5, 20071996, (i) 38,012,846 6,857,801 Shares are were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (iii) 67,000 1,091,510 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are were held by the Subsidiaries and Company in its treasury, (iiiii) 6,628,083 1,190,258 Shares are were reserved for future issuance pursuant upon exercise of options to outstanding purchase Shares ("Company Stock Options and Company Stock Awards granted Options") issued pursuant to the Company's stock option plans, (iv) 3,044,829 Class B Shares were issued and outstanding and (v) no Class B Shares were held by the Company Stock Plans and the ESPPin its treasury. As Except as set forth above, as of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests voting securities of the Company were issued, reserved for issuance or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any outstanding. All outstanding shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option are, and Company Stock Award outstanding as of December 8all shares which may be issued will be, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the awardwhen issued, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenonassessable and not subject to preemptive rights. There are no 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 above, as of the date of this Agreement, there are not any securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its subsidiaries is a party or by which any of them is bound 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 or other voting securities of the Company or of any of its subsidiaries or obligating the Company or any of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. Except as set forth in Item 4.03 of the Company Letter, as of the date of this Agreement, there are not any outstanding contractual obligations of the Company or any Subsidiary of its subsidiaries (i) to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock of the Company or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share to vote or to dispose of any shares of the capital stock or other type of equity interests any of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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's subsidiaries.
Appears in 3 contracts
Sources: Merger Agreement (Curtis Helene Industries Inc /De/), Merger Agreement (Curtis Helene Industries Inc /De/), Agreement and Plan of Merger (Conopco Acquisition Co Inc)
Capitalization. (a) The authorized capital stock of the Company consists -------------- of 100,000,000 Shares 250,000,000 shares of Common Stock and 5,000,000 10,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 711, 20072000, (ia) 38,012,846 Shares 84,603,030 shares of Common Stock are issued and outstanding, all of which are duly authorized, validly issued, fully paid paid, nonassessable and nonassessable. As free of December 10, 2007preemptive rights, (ib) 67,000 Shares no shares of preferred stock are held in the treasury of the Company. As of December 8, 2007issued and outstanding, (ic) no Shares shares of Common Stock are held by the Subsidiaries Company in its treasury and (d) no shares of Common Stock are held by the Company's Subsidiaries. Section 6.4 of the Disclosure Letter sets forth as of ----------- the date hereof (i) the number of outstanding options to purchase shares of Common Stock of the Company ("Options"), ------- Warrants and shares of restricted Common Stock (collectively, the "Company ------- Awards"), (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the dates on which the Company Awards were granted, (iii) the ------ number and class of securities of the Company for or into which each Company Award is exercisable, convertible or exchangeable, the exercise price thereof, (iv) if applicable, whether such Company Award is vested or unvested or subject to a repurchase right of the Company, and (v) the number of shares of Common Stock Plans that were issued in exchange for the promissory notes described in Section ------- 8.10 and the ESPPstockholders party to such promissory notes. As The Company has no ---- outstanding bonds, debentures, notes or other obligations entitling the holders thereof to vote (or that are convertible into or exercisable for securities having the right to vote) with the stockholders of the date of this Agreement, no shares of Company Preferred Stock are issued and outstandingon any matter. Except as set forth in this Section 4.03, and except for 6.4 or in Section 6.4 of the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure ----------- ----------- Letter, there are no other shares of capital stock or voting securities of the Company, and no existing options, warrants warrants, calls, subscriptions, convertible securities, or other rights, agreements, arrangements agreements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of that obligate the Company or any Subsidiary or obligating the Company or any Subsidiary of its Subsidiaries to issue issue, transfer or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessableits Subsidiaries. There are no outstanding contractual obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares or any shares of capital stock of the Company and there are no performance awards outstanding under any plan, program or other type arrangement of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary Company or any other personoutstanding stock-related awards. Except as set forth in Section 4.03(b) of the Disclosure Letter, there There are no commitments voting trusts or other agreements of any character or understandings to which the Company is bound obligating or any of its Subsidiaries or, to the Company to accelerate the vesting of any Company Stock Option as a result knowledge of the Offer Company, any of the Company's directors or executive officers is a party with respect to the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares voting of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear any 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 whatsoeverits Subsidiaries.
Appears in 3 contracts
Sources: Merger Agreement (Telocity Delaware Inc), Agreement and Plan of Merger (Telocity Delaware Inc), Merger Agreement (Hughes Electronics Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 shares of preferred stockCompany Common Stock, par value $0.001 0.01 per share (“Company Preferred Stock”)share. As of December 7March 30, 20072015, (i) 38,012,846 Shares are 17,311,573 shares of Company Common Stock were issued and outstanding, all (ii) no shares of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are Company Common Stock were held in the treasury and (iii) no shares were held by a wholly owned subsidiary of the Company. As of December 8March 30, 2007, 2015 there were (i) no Shares are held by 2,029,413 shares of Company Common Stock reserved for issuance pursuant to the Subsidiaries Equity Plan (including, as of March 30, 2015, outstanding Company Options to purchase 1,142,383 shares of Company Common Stock), and (ii) 6,628,083 Shares are reserved 2,426,167 LLC Units exchangeable for future issuance pursuant to outstanding 2,426,167 shares of Company Common Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Exchange Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03above, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27March 30, 2002 (the “Rights Agreement”)2015, as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type equity or voting interests in, the Company, or options, warrants or other rights to acquire any such stock or securities were issued, reserved for issuance or outstanding. Except as set forth above and except as expressly permitted under Section 5.1, there are no outstanding subscriptions, options, warrants, calls, convertible securities or other similar rights, agreements, commitments 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 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, or other equity or voting interests in, or securities convertible into, or exchangeable or exercisable for, shares of capital stock of, or other equity or voting interests in, the Company or any Subsidiary. Section 4.03 of its subsidiaries or obligating the Disclosure Letter sets forth the following information with respect Company or any of its subsidiaries to each Company Stock Option and Company Stock Award outstanding as of December 8issue, 2007: (i) the state grant, extend or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise enter into any such security, option, warrant, call, right or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreementcontract.
(b) The All outstanding shares of capital stock of the Company has made available to Parent accurate are, and complete copies of all Company Stock Plans shares that may be issued pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject to issuance as aforesaidEquity Plan will be, upon issuance on when issued in accordance with the terms and conditions specified in the instruments pursuant to which they are issuablethereof, will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary non-assessable and not subject to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractspreemptive rights.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 3 contracts
Sources: Merger Agreement, Agreement and Plan of Merger (Norcraft Companies, Inc.), Merger Agreement (Fortune Brands Home & Security, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares (i) 300,000,000 shares of Company Common Stock, of which 47,008,359 shares were issued and 5,000,000 outstanding as of August 3, 2001, and (ii) 2,000,000 shares of preferred stock, $0.10 par value $0.001 per share share, 5,000 of which have been designated as Series E 6% Cumulative Convertible Preferred Stock (“Company Preferred Stock”as modified by the Waiver). As of December 7, 2007, (i) 38,012,846 Shares are issued and outstanding, all of which are issued and outstanding as of the date hereof, and 100,000 of which have been designated Series A Junior Participating Preferred Stock, none of which are issued or outstanding. All of the outstanding shares of capital stock of the Company and its Subsidiaries have been duly authorized and validly issued, issued and are fully paid and nonassessable. As The Company has no outstanding stock appreciation rights, phantom stock or similar rights. All outstanding shares of December 10, 2007, (i) 67,000 Shares capital stock or other equity interests of the Subsidiaries of the Company are held in owned by the treasury Company or a direct or indirect wholly-owned Subsidiary of the Company, free and clear of all liens, pledges, charges, encumbrances, claims and options of any nature. As Except for options to purchase an aggregate of December 89,990,671 shares of Company Common Stock issued as of August 10, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted 2001 pursuant to the Company's 1994 Stock Incentive Plan, 1996 Stock Incentive Plan, Amended and Restated 1996 Director Option Plan, 1999 Stock Incentive Plan and 2001 Employee Stock Purchase Plan (collectively, the "COMPANY OPTION Plans"), the Company Stock Plans Warrants and the ESPP. As Company Rights (as hereinafter defined) or as provided under the terms of the date of this Agreement, no shares of Company Series E Preferred Stock are issued and outstanding. Except (as set forth in this Section 4.03, and except for modified by the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”Waiver), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no outstanding or authorized options, warrants warrants, calls, rights (including preemptive rights), commitments or any other rights, agreements, arrangements or commitments agreements of any character relating to which the issued Company or unissued any of its Subsidiaries is a party to, or by which any of them may be bound, requiring them to issue, transfer, grant, sell, purchase, redeem or acquire any shares of capital stock or other type any of equity interests their securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company or any Subsidiary of its Subsidiaries. There are no stockholder agreements, voting trusts or obligating other agreements or understandings to which the Company is a party or any Subsidiary by which it is bound relating to issue or sell the voting of any shares of the capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information Company. No existing rights with respect to each the registration of shares of Company Common Stock Option and under the Securities Act, including, but not limited to, demand rights or piggy-back registration rights, shall apply with respect to any Parent Shares issuable in connection with the Merger or upon exercise of Substitute Options or Substitute Warrants. SECTION 5.2(B) of the Company Stock Award outstanding Disclosure Schedule sets forth a list, as of December 8the date hereof, 2007: (i) of the state outstanding options and warrants to acquire shares of Company Stock, the name of the holder of such option or country in which warrant, the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) exercise price of such option or warrant, the number of Shares subject shares as to the award; (iv) the exercise which such option or purchase price of the award, if any; (v) the warrant will have vested at such date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of such option or right to repurchase of such award warrant will be accelerated in any way by the transactions contemplated by this Agreement and the extent of acceleration, if any, and any adjustments to such options or warrants resulting from the consummation of the transactions contemplated by this Agreement.
(b) The . Since June 30, 2001, no Company has made available to Parent accurate and complete copies Options or other options or warrants convertible or exchangeable for shares of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with or accelerated or had their terms modified. On or prior to the Effective Time, either (i) all applicable securities Laws and other applicable Laws and of the shares of Company Series E Preferred Stock shall have been converted into shares of Company Common Stock or (ii) all requirements of the conditions to the obligations of the holder(s) of the Company Series E Preferred Stock to waive their mandatory repurchase right set forth in applicable contracts.
(cthe Waiver shall have been and remain satisfied and the holder(s) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear Series E Preferred Stock have complied with the terms 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 whatsoeverWaiver.
Appears in 3 contracts
Sources: Merger Agreement (Open Market Inc), Merger Agreement (Open Market Inc), Merger Agreement (Divine Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 40,000,000 shares of Company Common Stock, par value $0.001 per share, and 5,000,000 shares of preferred stock, par value $0.001 per share (“"Company Preferred Stock”"). As At the close of December 7business on September 30, 20071998, (i) 38,012,846 8,933,547 Shares are were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 the Company did not hold any Shares are in its treasury, (iii) 1,441,174 Shares were reserved for future issuance pursuant to upon exercise of outstanding Company Stock Options under the Stock Option Plans (each as defined in Section 7.05), (iv) 50,000 Shares were reserved for issuance upon exercise of a warrant, (v) 1 Share was reserved for issuance in connection with the ESPP (as defined in Section 7.05(b)) and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, (vi) no shares of Company Preferred Stock are were issued and outstanding. Except as set forth in this Section 4.03above, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreementsince September 30, dated as 1998, no shares of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests voting securities of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any were issued, and no other shares of capital such stock ofor securities were reserved for issuance, issuable or outstanding. All outstanding Shares are, and all Shares which may be issued will be, when issued in accordance with the terms of the agreements, plans or other type of equity interests indocuments governing their issuance, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenonassessable 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 Certificate of Incorporation or the Bylaws of the Company or any contract, agreement, arrangement or understanding to which the Company is a party or otherwise bound. There are no 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 above, there are not any securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its subsidiaries is a party or by which any of them is bound 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 or other voting securities of the Company or any of its subsidiaries, or securities convertible into or exercisable for or exchangeable into any such shares, or obligating the Company to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, 20 15 agreement, arrangement or undertaking. There are not any outstanding contractual obligations of the Company or any Subsidiary of its subsidiaries to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear any of all security interests, liens, claims, pledges, options, rights its subsidiaries. Neither the Company nor any of first refusal, agreements, limitations on its subsidiaries is a party to any voting agreement with respect to the Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoeverof its securities.
Appears in 3 contracts
Sources: Merger Agreement (Johnson & Johnson), Merger Agreement (Johnson & Johnson), Merger Agreement (Femrx Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 30,000,000 shares of common stock, par value $.001 per share (the "COMMON STOCK") and 5,000,000 shares of preferred stock, par value $0.001 .01 per share (“Company the "PREFERRED STOCK"), of which 200,000 shares of Preferred Stock”)Stock are designated as Series A Junior Participating Preferred Stock and are reserved for issuance under the Company's Rights Agreement. As of December 727, 20071999, there were outstanding 6,926,901 shares of Common Stock, no shares of Preferred Stock, Employee Stock Options to purchase an aggregate of 877,514 Shares, Director Stock Options to purchase an aggregate of 54,548 Shares, and Other Options to purchase an aggregate of 69,169 Shares (iall such Options being exercisable either before or as a result of the transactions contemplated by this Agreement) 38,012,846 and Warrants to purchase an aggregate of 634,952 Shares are issued and outstanding, (all of which are Warrants were exercisable). All outstanding shares of capital stock of the Company have been, and all Shares which may be issued pursuant to Options or Warrants will be, when issued in accordance with the terms thereof, duly authorized and validly issued, and fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03or on Schedule 4.05, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June changes since December 27, 2002 (1999 resulting from the “Rights Agreement”), as amended exercise of Options or Warrants outstanding on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentsuch date, there are no options, warrants or other rights, agreements, arrangements or commitments not (i) any shares of any character relating to the issued or unissued capital stock or other type equity securities (as defined in Rule 3a11-1 under the Exchange Act) or voting securities of the Company issued, reserved for issuance or outstanding, (ii) any securities, options, warrants, calls, subscriptions, convertible securities or other rights (including preemptive rights), agreements, understandings, arrangements, commitments or undertakings of any character obligating the Company or any Subsidiary now or at any time in the future to issue, deliver or sell, or cause to be issued, delivered or sold, any capital stock, equity interests security, voting security or interest of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue issue, grant, extend or sell enter into any shares of capital stock ofsuch security, option, warrant, call, subscription, convertible security or other type of equity interests inright, the Company agreement, understanding, arrangement, commitment or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8undertaking, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise any rights, commitments, agreements, arrangements, undertakings or purchase price of the awardobligations, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vestingcontingent or otherwise, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity securities or voting securities or interests of each the Company or any Subsidiary have been issued and granted or any securities of the types described in material compliance with (i) all applicable securities Laws and other applicable Laws and clauses (ii) all requirements set forth and (iv) of this Section, (iv) any outstanding bonds, debentures, notes or other indebtedness or obligations or securities of the Company or any Subsidiary, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) on any matters on which shareholders of the Company may vote, (v) any obligations, contingent or otherwise, guaranteeing the value of any of the Shares or the equity securities or capital stock of any Subsidiary either now or at any time in applicable contracts.
the future, or (cvi) Each outstanding share any voting trusts, proxies or other agreements or understandings to which the Company or any Subsidiary is a party or is bound with respect to the voting of the Shares or any capital stock or other type equity security or interest of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such the Company or any Subsidiary. Any share is owned repurchase program previously approved by the Company has been terminated. Except as set forth on Schedule 4.05, there are no outstanding rights held or another issued to any Person obligating the Company or any Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations to make a payment to such Person based on the Company’s value or the price of the Shares or any of the shares of capital stock of any Subsidiary’s voting , and neither the Company nor any Subsidiary has issued any stock appreciation rights, charges phantom stock rights or any similar rights to any Person. Schedule 4.05 sets forth (A) with respect to each outstanding Option, the name of the holder of such Option, the date of grant of such Option, the number of Shares subject to such Option, the number of Shares vested under such Option and other encumbrances the exercise price of any nature whatsoeversuch Option and (B) with respect to each outstanding Warrant, the name of the holder of such Warrant, the date of grant of such Warrant, the number of Shares subject to such Warrant, the number of Shares vested under such Warrant and the exercise price of such Warrant. Each Option and Warrant is evidenced by an option or warrant agreement or certificate, each of which is in a form previously delivered by the Company to Parent and Merger Sub.
Appears in 2 contracts
Sources: Merger Agreement (Renex Corp), Agreement and Plan of Merger (Renex Corp)
Capitalization. (a) The authorized capital stock of the Company consists of: (i) 200,000,000 shares of Company Common Stock and (ii) 100,000,000 Shares and 5,000,000 shares of preferred stock, $0.01 par value $0.001 per share (“the "Company Preferred Stock”"). As of December 7, 2007the date hereof, (iA) 38,012,846 Shares 20,357,472 shares of Company Common Stock are issued and outstanding, all of which are duly authorized, validly issued, fully paid and nonassessable. As of December 10, 2007nonassessable and not subject to preemptive rights, (iB) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding, (C) 300,000 shares of Company Common Stock are reserved for issuance under Company's 1999 Employee Stock Purchase Plan, (D) 5,361,000 shares of Company Common Stock are reserved for issuance upon the exercise of outstanding Options under the Company's 1995 Stock Option Plan, (E) 1,500,000 shares of Company Common Stock are reserved for issuance upon the exercise of outstanding Options under the Company's 2000 Stock Incentive Plan and (F) 2,708,308 shares of Company Common Stock are reserved for issuance pursuant to the warrant agreements set forth in Schedule 3.2(a) (collectively, the "Warrant Agreements"). Except as set forth in Schedule 3.2(a) or in this Section 4.033.2(a), (x) there are no other options, calls, warrants or rights, agreements, arrangements or commitments of any character obligating the Company or any of its Subsidiaries to issue, deliver or sell any shares of capital stock of or other equity interests in the Company or any of the Subsidiaries; (y) there are no 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 shareholders of the Company may vote; and except for (z) there are no shareholders agreements, voting trusts or other agreements or understandings to which the Merger Option and the rights (the “Rights”) issued pursuant Company is a party or by which it is bound relating to the Preferred Stock Rights Agreementvoting, dated as registration or disposition of June 27, 2002 (any shares of the “Rights Agreement”), as amended on March 16, 2003, between capital stock of the Company and Mellon Investor Services(including any such agreements or understandings that may limit in any way the solicitation of proxies by or on behalf of the Company or the casting of votes by the shareholders of the Company with respect to the Merger) or granting to any person or group of persons the right to elect, L.L.C.or to designate or nominate for election, a director to the Board of Directors. Except as rights agentset forth in Schedule 3.2(a), there are no programs in place or outstanding contractual obligations of the Company or any of the Subsidiaries (1) to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or (2) to vote or to dispose of any shares of the capital stock of any of the Subsidiaries.
(b) All the outstanding capital stock or other equity interests of the Subsidiaries are duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights and, except as set forth in Schedule 3.1, are owned by the Company or a Subsidiary free and clear of any liens, security interests, pledges, agreements, claims, charges or encumbrances of any nature whatsoever. There are no existing options, calls, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests or securities of any Subsidiary. Except for the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or other type of equity interests inSubsidiaries and except as set forth in Schedule 3.2(b), the Company does not directly or indirectly own any equity or similar interest in, or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8interest convertible into or exchangeable or exercisable for, 2007: (i) the state any equity or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated similar interest in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject to issuance as aforesaidother corporation, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuablepartnership, will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock joint venture or other type of equity interests of any Subsidiary business association or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other personentity. Except as set forth in Section 4.03(b) of the Disclosure LetterSchedule 3.2(b), there are no commitments or agreements of any character to which neither the Company is bound obligating the Company to accelerate the vesting of nor any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorizedunder any current or prospective obligation to make a capital contribution or investment in or loan to, validly issuedor to assume any liability or obligation of, fully paid and nonassessableany corporation, and each such share is owned by the Company partnership, joint venture or another Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s business association or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoeverentity.
Appears in 2 contracts
Sources: Merger Agreement (Cobalt Group Inc), Merger Agreement (Warburg Pincus Equity Partners Lp)
Capitalization. (a) The On the date hereof, the authorized capital stock of the Company consists of 100,000,000 Shares 35,000,000 shares of its Common Stock and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company the "Preferred Stock”"), consisting of 170,000 shares which have been designated as Series A Preferred Stock. As of December 7, 2007, (i) 38,012,846 Shares are The issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 consists of the Disclosure Letter sets forth the following information with respect to each Company Stock Option 20,383,918 shares of Common Stock, and Company Stock Award outstanding as no shares of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this AgreementPreferred Stock.
(b) The All the outstanding shares of capital stock of the Company has made available to Parent accurate have been duly and complete copies validly issued and are fully paid and non-assessable, and were issued in accordance with the registration or qualification requirements of all Company Stock Plans the Securities Act and any relevant state securities laws or pursuant to which valid exemptions therefrom. Upon issuance, sale and delivery as contemplated by this Agreement, and with respect to the Company has granted Second Closing Shares, approval by the Company Stock Options and Company Stock Awards that are currently outstanding and requisite vote of the form stockholders of all award agreements evidencing such awards. All the Company, the 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 nonassessable. There non-assessable shares of the Company, free and clear of any and all security interests, pledges, liens, charges, claims, options, restrictions on transfer, preemptive or similar rights, proxies and voting or other agreements, or other encumbrances of any nature whatsoever, except for those provided for herein and other than restrictions on transfer imposed by federal or state securities laws.
(c) Except for the conversion rights which attach to the warrants, options and convertible securities which are listed on Schedule 2.3, on the Closing Dates, there will be no outstanding contractual obligations shares of Common Stock or any other equity security of the Company issuable upon conversion, exchange or exercise of any security of the Company or any Subsidiary nor will there be any rights, options, calls or warrants outstanding or other agreements to repurchaseacquire shares of Common Stock nor will the Company be contractually obligated to purchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other personits outstanding shares. Except as set forth in Section 4.03(bon Schedule 2.3, (i) no stockholder of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company entitled to accelerate the vesting of any Company Stock Option as a result of the Offer preemptive or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding similar rights to subscribe for shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and the Company, (ii) all requirements set forth no stockholder of the Company has any rights, contractual or otherwise, to designate members of the Company's Board of Directors (the "Board"), other than in applicable contracts.
accordance with the DGCL, and (ciii) Each outstanding share of capital stock there are no stockholder, voting or other type agreements relating to the rights and obligations of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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's stockholders.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Micro Therapeutics Inc), Securities Purchase Agreement (Micro Investment LLC)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 500,000,000 shares of preferred stockCompany Common Stock and 2,000,000 shares of Preferred Stock, $1 par value $0.001 per share (“"Company Preferred Stock”"). As of December 7March 15, 20071997, (i) 38,012,846 Shares are 166,817,355 shares of Parent Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10non-assessable, 2007, (i) 67,000 Shares are and 13,007,202 shares were held in the treasury of the Company. As of December 8treasury, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are were outstanding or held in treasury, (iii) no shares of Company Common Stock or Company Preferred Stock were held by subsidiaries of the Company, (iv) 1,606,065 shares of Company Common Stock were reserved for future issuance under the Company's 1994 Restricted Stock Ownership Plan, (v) 210,849 shares of Company Common Stock were reserved for issuance upon exercise of the Warrants, (vi) 7,992,724 shares of Company Common Stock were reserved for issuance upon exercise of stock options issued under the ABC Company 1995 Stock Option Plan, and outstanding(vii) 26,084 shares of Company Common Stock were reserved for issuance upon exercise of stock options issued under the stock incentive plans maintained by ▇▇▇▇▇▇▇ International, Inc. No material change in such capitalization has occurred between March 15, 1997 and the date hereof. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as 3.03 of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Schedule or the Company SEC Reports, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary of its subsidiaries or obligating the Company or any Subsidiary of its subsidiaries to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiaryof its subsidiaries. Except as set forth in Section 4.03 3.03 of the Company Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state Schedule or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject to issuance as aforesaidSEC Reports, 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 there are no outstanding contractual obligations obligations, contingent or otherwise, of the Company or any Subsidiary of its subsidiaries to repurchase, redeem or otherwise acquire any Shares shares of Company Common Stock or any the capital stock or other type of equity interests of any Subsidiary subsidiary or to provide funds to, to or make any investment (in the form of a loan, capital contribution or otherwise) in, in any Subsidiary or any such subsidiary other personthan guarantees of bank obligations of subsidiaries entered into in the ordinary course of business. Except as set forth in Section 4.03(b) 3.01 or 3.03 of the Company Disclosure LetterSchedule, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result all of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or (other type of equity interests than directors' qualifying shares) of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary the Company's subsidiaries is duly authorized, validly issued, fully paid and nonassessable, nonassessable and each all such share is shares (other than directors' qualifying shares) are owned by the Company or another Subsidiary subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on in the Company’s or any Subsidiary’s 's voting rights, charges and or other encumbrances of any nature whatsoever.
Appears in 2 contracts
Sources: Merger Agreement (Adt Limited), Merger Agreement (Tyco International LTD)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 one hundred twenty five million (125,000,000) shares of Company Common Stock and five million (5,000,000) shares of blank-check preferred stock, par value $0.001 per share share. As of the date of this Agreement, thirty-two million one hundred ninety-four thousand eight hundred eighty (32,194,880) shares of Company Common Stock, and one million forty-six thousand eight hundred and forty-six (1,046,846) shares of Series A convertible preferred stock (the “Company Series A Convertible Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10nonassessable and not subject to preemptive rights, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) and there were no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no other shares of Company Preferred Stock are capital stock issued and outstanding. Except as set forth in this Section 4.034.4(a) or as may be specified in Section 4.4(a) of the Company Disclosure Schedule, and except for as of the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights date of this Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, i) there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of, or other type of equity interests of in, the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There there are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares shares of Company Common Stock, Company Series A Convertible Preferred Stock or any other capital stock of the Company, nor any capital stock or other type of equity interests of any Subsidiary or to provide funds toof, or make any investment (in the form of a loan, capital contribution or otherwise) equity interest in, any Subsidiary or any other person. Except as set forth in Section 4.03(bof its Subsidiaries, (iii) of the Disclosure Letter, there are no commitments declared or agreements accrued unpaid dividends with respect to any of any character to which the Company’s outstanding securities, and (iv) the Company is bound obligating the Company to accelerate the vesting of does not have outstanding or authorized any Company Stock Option as a result of the Offer stock appreciation, phantom stock, profit participation, or the Mergersimilar rights. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock of, or other type of equity interests of interest in, each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by .
(b) Except as may be specified in Section 4.4(b) of the Company or another Subsidiary free and clear Disclosure Schedule, as of all security intereststhe date of this Agreement, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s or outstanding equity, convertible and/or equity-linked securities (including options and warrants), only the Company Common Stock and Company Series A Convertible Preferred Stock provide the holders thereof with any Subsidiary’s voting rights, charges and other encumbrances rights of any nature whatsoeverkind.
(c) Except as may be specified in Section 4.4(c) of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any of its Subsidiaries have outstanding any bonds, debentures, notes or other obligations or debt securities, and also except as set forth in Section 4.4(c) of the Company Disclosure Schedule, no outstanding bonds, debentures, notes or other obligations or debt securities carry with them any voting rights of any kind.
Appears in 2 contracts
Sources: Merger Agreement (Gca I Acquisition Corp), Merger Agreement (Gca I Acquisition Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 of: (i) 50,000,000 shares of preferred stockCompany Common Stock, par value $0.001 per share 9,108,056 shares of which are issued and outstanding; and (“ii) 10,000,000 shares of Company Preferred Stock”), none of which are issued and outstanding. As Schedule 4.3(a) sets forth, as of December 7the date of this Agreement, 2007the name and beneficial ownership of the Company’s capital stock held by any stockholder or group of stockholders (in accordance with Exchange Act requirements) who beneficially own at least five percent (5%) of the issued and outstanding shares of capital stock of the Company. All of the outstanding shares of Company Stock have been duly authorized, (i) 38,012,846 Shares are fully paid and non-assessable and were validly issued in compliance with all applicable federal and state securities laws and not in violation of any preemptive rights or rights of first refusal or first offer. The Company holds no Company Stock in its treasury. The authorized capital of Merger Sub consists of 100 shares of Merger Sub Common Stock, 100 of which are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of owned by the Company. As of December 8, 2007, .
(ib) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”4.3(a), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no (i) outstanding options, warrants warrants, puts, calls, convertible securities, preemptive, right of first refusal or first offer or similar rights, (ii) bonds, debentures, notes or other Indebtedness having general voting rights or that are convertible or exchangeable into securities having such rights or (iii) subscriptions or other rights, agreements, arrangements Contracts or commitments of any character character, (A) relating to the issued or unissued capital stock or other type of equity interests shares of the Company or any Subsidiary or Company, (B) obligating the Company or any Subsidiary to issue issue, transfer, deliver or sell or cause to be issued, transferred, delivered, sold or repurchased any options or shares of capital stock ofor securities convertible into or exchangeable for such shares, or other type of equity interests in, (C) obligating the Company to grant, extend or enter into any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8such option, 2007: (i) the state warrant, call, subscription or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise other right, agreement, arrangement or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of commitment for such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessableshares. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock equity interests or other type securities of equity interests of any Subsidiary the Company or to provide funds to, or to make any investment (in the form of a loan, capital contribution or otherwise) in, in any Subsidiary or any other personPerson. Except as set forth in Section 4.03(b) of the Disclosure LetterSchedule 4.3(b), there are no commitments shareholders agreements, voting trusts or other agreements of any character or understandings to which the Company is a party or bound obligating with respect to the Company to accelerate the vesting voting of any Company Stock Option as equity securities or other securities. There are no outstanding or authorized stock appreciation, phantom stock or similar rights with respect to the Company. All of the Company’s securities have been granted, offered, sold and issued in compliance in all material respects with all applicable foreign, state and federal securities Laws. As a result of the Offer or consummation of the Merger. All outstanding Sharestransactions contemplated by this Agreement, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of no equity interests of each Subsidiary have been issued the Company are issuable and granted no rights in material compliance connection with any interests, warrants, rights, options or other securities of the Company accelerate or otherwise become triggered (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractswhether as to vesting, exercisability, convertibility or otherwise).
(c) Each outstanding Company Option intended to qualify as an “incentive stock option” under the Code so qualifies. Each grant of a Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to be effective by all necessary corporate action, and: (i) the stock option agreement governing such grant was duly executed and delivered by each party thereto; (ii) each such grant was made in accordance with the terms of the applicable Company Benefit Plan under which it was issued and all other applicable Laws; (iii) the per share exercise price of each Company Option was equal to the fair market value of a share of capital stock Company Common Stock on the applicable grant date; and (iv) each such grant was properly accounted for in accordance with GAAP in the financial statements (including the related notes) of the Company.
(d) Since its formation, the Company and has not declared or other type paid any distribution or dividend in respect of its equity interests and has not repurchased, redeemed or otherwise acquired any equity interest of each Subsidiary is duly authorized, validly issued, fully paid and nonassessablethe Company, and each such share is owned by the Board of Directors of the Company or another Subsidiary free and clear has not authorized any 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 whatsoeverforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Aina Le'a Inc.), Merger Agreement (Origo Acquisition Corp)
Capitalization. (a) The authorized capital stock of the Company First ▇▇▇▇▇▇▇ consists of 100,000,000 Shares and 5,000,000 25,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred First ▇▇▇▇▇▇▇ Common Stock”). As of December 7, 2007, (i) 38,012,846 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agenthereof, there are (x) 6,345,436 shares of First ▇▇▇▇▇▇▇ Common Stock issued and outstanding (including outstanding but unvested restricted stock), (y) 9,039 shares of First ▇▇▇▇▇▇▇ Common Stock held in treasury and (z) 232,000 shares of First ▇▇▇▇▇▇▇ Common Stock reserved for issuance upon exercise of outstanding stock options or otherwise. All of the issued and outstanding shares of First ▇▇▇▇▇▇▇ Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof. Except for the outstanding options under the First ▇▇▇▇▇▇▇ Stock Plans, First ▇▇▇▇▇▇▇ does not have and is not bound by any outstanding subscriptions, options, warrants or other rightswarrants, agreementscalls, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which calling for the Company is bound obligating the Company to accelerate the vesting purchase or issuance of any Company shares of First ▇▇▇▇▇▇▇ Common Stock Option as a result or any other equity security of First ▇▇▇▇▇▇▇ or any securities representing the right to purchase or otherwise receive any shares of First ▇▇▇▇▇▇▇ Common Stock or any other equity security of First ▇▇▇▇▇▇▇. The names of the Offer optionees and restricted stock award recipients, the grant date of each option and restricted stock award, the number of shares subject to each such option or award, vesting schedule for each such option or award, the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests option (incentive stock option or nonqualified option), the expiration date of each Subsidiary have been issued such option, and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements the price at which each such option may be exercised under the First ▇▇▇▇▇▇▇ Stock Plans are set forth in applicable contracts.
(c) Each outstanding share Section 3.2 of the First ▇▇▇▇▇▇▇ Disclosure Schedules. Since December 31, 2008, First ▇▇▇▇▇▇▇ has not issued any shares of its capital stock or other type of equity interests of each Subsidiary is duly authorizedstock, validly issued, fully paid and nonassessable, 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 rightssecurities convertible into or exercisable for any shares of its capital stock, charges and other encumbrances than shares of any nature whatsoeverFirst ▇▇▇▇▇▇▇ Common Stock issuable pursuant to the exercise of director or employee stock options granted under the First ▇▇▇▇▇▇▇ Stock Plan.
Appears in 2 contracts
Sources: Merger Agreement (First Chester County Corp), Merger Agreement (First Chester County Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 1,200,000,000 shares of Common Stock and 5,000,000 50,000,000 shares of preferred stock, stock without par value $0.001 per share (“Company Preferred Stock”). As Of such authorized capital stock, as of December 7September 30, 20072009, (i) 38,012,846 Shares are 667,483,036 shares of Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are 9,534,590 shares of Common Stock were held in treasury, (iii) 22,757,571 shares of Common Stock were reserved for future issuance pursuant in respect of outstanding options to acquire Common Stock, (iv) 6,152,863 shares of Common Stock were reserved for issuance in respect of settlement of any outstanding Company awards of restricted share units or phantom shares with respect to shares of Common Stock, and (v) 14,714,245 shares of Common Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As were reserved for issuance in respect of the date of this Agreement$3.375 Trust Convertible Preferred Securities issued by AES Trust III (the “Trust Preferred Securities”), and (vi) no shares of Company Preferred Stock are were issued and or outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any All outstanding shares of capital stock of, Common Stock are or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations , and free of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment pre-emptive rights.
(in the form of a loan, capital contribution or otherwiseb) in, any Subsidiary or any other person. Except as set forth in Section 4.03(bsubsection (a) above, as of the Disclosure Letterdate hereof, there are no outstanding subscriptions, options, warrants, calls, convertible securities or other similar rights, agreements or commitments or agreements relating to the issuance of any character capital stock to which the Company or any of its Subsidiaries is bound a party obligating the Company to accelerate the vesting of (i) issue, transfer or sell any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable the Company or securities Laws and other applicable Laws and convertible into or exchangeable for such shares or equity interests, (ii) all requirements set forth in applicable contractsgrant, extend or enter into any such subscription, option, warrant, call, convertible securities or other similar right, agreement or arrangement, or (iii) redeem or otherwise acquire any such shares of capital stock or other equity interests.
(c) Each Except as set forth in subsection (a) above, the Company has no outstanding share 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 on any matter.
(d) There are no voting trusts or other agreements or understandings to which the Company is a party with respect to the voting of the capital stock or other type equity interest of equity interests the Company.
(e) As of each Subsidiary is duly authorizedthe date hereof, validly issued, fully paid and nonassessable, and each such share is owned by the Company has no intention or another Subsidiary free and clear expectation to issue any additional shares of all security interestsCommon Stock (or securities exchangeable or convertible into Common Stock) to raise equity capital for the next twelve months, liensexcept for possible issuances pursuant to benefits plans, claims, pledges, employee stock options, stock appreciation rights of first refusal, agreements, limitations on the Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoeverbusiness combination transactions.
Appears in 2 contracts
Sources: Stock Purchase Agreement (China Investment Corp), Stock Purchase Agreement (Aes Corp)
Capitalization. (a) The authorized capital stock Equity Interests of the Company consists of 100,000,000 Shares and 5,000,000 19,000,000 shares of preferred stockCompany Common Stock, 100,000 shares of Class A Common Stock, par value $0.001 0.01 per share (“the "Company Class A Stock") and 1,000,000 shares of Preferred Stock, par value $0.01 per share ("Company Preferred Stock”"). As of December 7June 1, 2007, ,
(i) 38,012,846 Shares are 4,077,357 shares of Company Common Stock were issued and outstanding, all of which are were validly issued, fully paid and nonassessable. As nonassessable and were not issued in violation of December 10, 2007, any preemptive rights,
(iii) 67,000 Shares are 174,000 shares of Company Common Stock were held in the treasury of the Company. As of December 8, 2007, ,
(iiii) no Shares are shares of Company Common Stock were held by the Subsidiaries and Subsidiaries,
(iiiv) 6,628,083 Shares are reserved for future issuance pursuant to 742,870 shares of Company Common Stock were issuable upon exercise of outstanding Company Stock Options and Company Stock Awards stock options granted pursuant to the Company Stock Plans Award Plans,
(v) 100,000 shares of Company Common Stock were issuable upon the exercise of a warrant,
(vi) no shares of Company Class A Stock were issued and the ESPP. As of the date of this Agreement, outstanding; and
(vii) no shares of Company Preferred Stock are were issued and outstanding. .
(b) Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”4.03(a), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no
(i) outstanding Equity Interests in the Company or securities exercisable or exchangeable for or convertible into any Equity Interests of the Company or any Subsidiary and no such securities are reserved for issuance and there is no obligation to authorize, issue or sell any such securities.
(ii) outstanding options, warrants warrants, rights or other rights, agreements, arrangements or commitments of any character contracts relating to the issued or unissued capital stock or other type of equity interests Equity Interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares Equity Interests in the Company or any Subsidiary or obligations of capital the Company or any Subsidiary to issue or sell any such options, warrants or rights or enter into such contracts,
(iii) outstanding stock ofappreciation rights, stock awards, restricted stock, restricted stock awards, performance units, phantom stock, profit participation or similar rights with respect to the Company, any Subsidiary or any of their respective Equity Interests (collectively, "Rights") or obligation of the Company or any Subsidiary to issue or sell any such Right, or
(iv) voting trusts, proxies or other type contracts with respect to the voting of equity interests in, any Equity Interests of the Company or any Subsidiary or giving any person any rights with respect to any future issuance of securities by the Company or any Subsidiary. Section 4.03 .
(c) All shares of Company Common Stock subject to issuance under the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject to issuance as aforesaidPlans, 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 nonassessablenonassessable and not subject to preemptive rights. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares Equity Interests of the Company or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person.
(d) The Company has not adopted a stockholder rights plan. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable or exchangeable for securities having the right to vote or other Equity Interests of the Company or any Subsidiary) with the stockholders of the Company or any Subsidiary on any matter ("Voting Debt").
(e) Section 4.03 of the Company Disclosure Letter sets forth a true and complete list of each current or former Employee, officer, director, consultant or other service provider of the Company and its Subsidiaries who holds a Company Stock Award under the Company Stock Award Plans as of the date hereof, together with the number of shares of Common Stock subject to such Company Stock Awards, the date of grant of such Company Stock Awards, the exercise price of such Company Stock Awards, the expiration date of such Company Stock Awards, the vesting schedule for such Company Stock Awards and whether or not such Company Stock Award is intended to qualify as an "incentive stock option" within the meaning of Section 422(b) of the Code. Except as set forth in Section 4.03(b) 4.03 of the Company Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any each Company Stock Option as a result Award has an exercise price at least equal to the fair market value of the Offer Common Stock on a date no earlier than the date of the corporate action authorizing the grant and no Option has had its exercise date or the Merger. grant date delayed or "backdated." All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) the Securities Act and, to the Company's knowledge, any applicable state blue sky laws. The Company has provided to Parent true and complete copies of the Company Stock Award Plans and the forms of all applicable securities Laws stock option agreements evidencing the Company Stock Awards. On and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock after the Effective Time, no Employee, officer, director, consultant or other type service provider of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company and its Subsidiaries shall have any right under the Company Stock Award Plans to purchase Common Stock, or another Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on any other equity interest in the Company’s , any of the Subsidiaries, Merger Sub, the Surviving Corporation, Parent or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoevertheir respective Affiliates or subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Horowitz Seth), Merger Agreement (Everlast Worldwide Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 80,000,000 shares of preferred stock, par value $0.001 per share (“Company Common Stock and 20,000,000 shares of Company Preferred Stock”). As At the close of December 7business on March 9, 20071998, (ia) 38,012,846 Shares are 26,176,265 shares of Company Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007and not subject to preemptive rights, (ib) 67,000 Shares are of the amount referred to in clause (a) above, no shares of Company Common Stock were held in treasury by the treasury Company or by wholly owned subsidiaries of the Company. As of December 8, 2007, (ic) no Shares are held by options to purchase 2,658,086 and 1,331,340 shares of Company Common Stock were outstanding under the Subsidiaries Stock Plan and the Rose▇ ▇▇▇ion, and (iid) 6,628,083 Shares are 237,346 shares of Company Common Stock were reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and former owners of the ESPPCompany's Canadian subsidiary. As of the date of this Agreementhereof, no shares of Company Preferred Stock are were issued or outstanding. No change in such capitalization has occurred between March 9, 1998 and outstandingthe date hereof, except (i) the issuance of shares of Company Common Stock pursuant to the exercise of outstanding options and (ii) as contemplated by this Agreement. Except as set forth in this Section 4.03, and except for 3.3 or as disclosed in Section 3.3 of the Merger Option and disclosure letter delivered by the rights Company to Parent (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”"Company Disclosure Letter"), as amended on March 16, 2003, between of the Company and Mellon Investor Services, L.L.C., as rights agentdate of this Agreement, there are no options, warrants or other rights, agreements, arrangements or commitments commitments, in each case to which the Company or any of its subsidiaries is a party, of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary of its subsidiaries or obligating the Company or any Subsidiary of its subsidiaries to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awardsits subsidiaries. All Shares 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, will shall be duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights. There Except as set forth in Section 3.3 of the Company Disclosure Letter, there are no outstanding contractual obligations obligations, contingent or otherwise, of the Company or any Subsidiary of its subsidiaries to repurchase, redeem or otherwise acquire any Shares shares of Company Common Stock or any the capital stock or other type of equity interests of any Subsidiary subsidiary or to provide funds to, to or make any material investment (in the form of a loan, capital contribution or otherwise) in, in any Subsidiary such subsidiary or any other personentity other than guarantees of obligations of subsidiaries entered into in the ordinary course of business. Except as set forth in Section 4.03(b) All of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is the Company's subsidiaries are duly authorized, validly issued, and, where applicable, fully paid and nonassessable, and each and, except as set forth in Section 3.3 of the Company Disclosure Letter or (in the case of subsidiaries of the Company only) for such share is matters as would not, individually or in the aggregate, have a Material Adverse Effect, all such shares are owned by the Company or another Subsidiary subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on in the Company’s or any Subsidiary’s 's voting rights, charges and or other encumbrances of any nature whatsoever.
Appears in 2 contracts
Sources: Merger Agreement (Usa Networks Inc), Merger Agreement (Ticketmaster Group Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and of: (1) 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As , $1.00 par value per share, of December 7which (A) 1,068,102 have been designated cumulative convertible, 2007$13,800 liquidation preference shares, (i) 38,012,846 Shares are issued and outstanding, all 688,029 of which are currently issued and outstanding as of September 12, 2003, and (B) 1,000,000 have been designated Series A junior participating preference shares, of which none are currently issued and outstanding as of the date of this Agreement, and (2) 200,000,000 shares of Company Common Stock, $.01 par value per share, 80,582,989 of which were issued and outstanding as of September 12, 2003. All of such issued and outstanding shares are validly issued and are fully paid, nonassessable and free of preemptive rights.
(b) Except as set forth in Section 5.2 of the Company Disclosure Schedule, there are no outstanding subscriptions, options, calls, contracts, commitments, understandings, restrictions, arrangements, stock appreciation rights (SARs), 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 Company to issue, deliver or sell, or cause to be issued, fully paid and nonassessabledelivered or sold, additional shares of Company Capital Stock, or obligating Company to grant, extend or enter into any such agreement or commitment. As of December 10There are no voting trusts, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant proxies or other agreements or understandings to outstanding which Company Stock Options and Company Stock Awards granted pursuant is a party or is bound with respect to the voting of any shares of Company Stock Plans and the ESPPCapital Stock. As of the date of this AgreementAgreement and as of the Closing Date, no shares the terms of the agreements evidencing the Company Stock Options will permit the actions contemplated by Section 3.1(l).
(c) The Board of Directors of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants has not declared any dividend or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information distribution with respect to each the Company Capital Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state record or country in payment date for which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise is on or purchase price of the award, if any; (v) after the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(bd) The As of the date hereof, (i) no bonds, debentures, notes or other indebtedness of Company has made available having the right to Parent accurate vote are issued or outstanding, and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There (ii) there are no outstanding contractual obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares shares of Company Capital Stock or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests any of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsof Company.
(ce) Each outstanding share The Company Common Stock and Company Preferred Stock are traded on the NYSE. No other securities of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear any of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations its Subsidiaries are listed or quoted for trading on the Company’s any United States domestic or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoeverforeign securities exchange.
Appears in 2 contracts
Sources: Merger Agreement (Titan Corp), Merger Agreement (Lockheed Martin Corp)
Capitalization. (a) The As of February 28, 2010, the authorized capital stock of the Company consists of 100,000,000 50,000,000 Shares of Company Common Stock, of which 16,754,943 Shares were issued (including 1,000 Shares held by the Company in its treasury and 5,000,000 16,753,943 Shares that were outstanding, of which 1,307,203 Shares constitute restricted shares and shares held in the Director Stock Unit Program trust). There are no other classes of preferred stock, par value $0.001 per share (“capital stock of the Company Preferred Stock”)authorized or outstanding. As of December 7February 28, 20072010, (i) 38,012,846 2,443,016 Shares are of Company Common Stock were reserved for issuance under the 2004 Plan and the 2009 Plan, (ii) 751,666 Shares were subject to outstanding Options (whether or not under the 2004 Plan or the 2009 Plan), and (iii) 1,095,000 Shares were subject to outstanding Warrants. All outstanding Shares of the Company Common Stock have been, and all shares of the Company Common Stock that may be issued upon exercise or conversion of Options or Warrants, will be when issued in accordance with the respective terms thereof, duly authorized and outstanding, all of which are validly issued, fully paid paid, nonassessable and nonassessable. As free of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstandingpreemptive rights. Except as set forth in this Section 4.03, described above and except for the Merger Option and Top-Up Option:
(1) there are no shares of capital stock of the Company authorized, issued, reserved for issuance or outstanding; (2) there are no outstanding options or other rights of any kind that obligate the Company or any of its Subsidiaries to issue, deliver or dispose of any shares of capital stock, voting securities or other Equity Interests of the Company or any securities or obligations convertible into or exchangeable into or exercisable for any shares of capital stock, voting securities or other Equity Interests of the Company (collectively, “Company Securities”); (3) there are no restricted shares, stock appreciation rights, performance units, “phantom” equity or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the “Rights”value or price of, any capital stock of, or other voting securities of or ownership interests in, the Company, to which the Company is bound; (4) issued pursuant other than any Shares deliverable to the Preferred Stock Rights Agreement, dated as Company in payment of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentexercise price of Options, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities; (5) there are no other options, warrants calls, warrants, pre-emptive rights or other similar rights, agreements, arrangements or commitments of the Company of any character relating to the issued or unissued capital stock of the Company to which the Company or any of its Subsidiaries is a party; and (6) there are no 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 Common Stock may vote.
(b) Section 3.3(b) of the Company Disclosure Schedule contains a complete and correct list of all outstanding Options as of February 28, 2010, whether or not granted under the 2004 Plan or the 2009 Plan, and all outstanding Warrants as of February 28, 2010, including the holder, the date of grant and the exercise or base price and number of Shares of Company Common Stock subject thereto.
(c) Each of the outstanding shares of capital stock, voting securities or other Equity Interests of each Subsidiary of the Company is duly authorized, validly issued, fully paid, nonassessable and free of any preemptive rights, and all such securities are owned by the Company or another wholly-owned direct or indirect Subsidiary of the Company and are owned free and clear of all Liens. There are no (i) outstanding options or other rights of any kind, that obligate the Company or any of its Subsidiaries to issue or deliver any shares of capital stock, voting securities or other Equity Interests of any such Subsidiary or any securities or obligations convertible into or exchangeable into or exercisable for any shares of capital stock, voting securities or other Equity Interests of a Subsidiary of the Company, (ii) restricted shares, stock appreciation rights, performance units, “phantom” equity 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 of or ownership interests in, any Subsidiary of the Company, to which the Company or any of its Subsidiaries is bound, (iii) outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any securities or obligations convertible into or exchangeable into or exercisable for any shares of capital stock, voting securities or other Equity Interests of a Subsidiary of the Company or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any of the Company’s Subsidiaries or any other Person; or (iv) other options, calls, warrants, pre-emptive rights or other similar rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of any Subsidiary of the Company to which the Company or any of its Subsidiaries is a party. None of the Subsidiaries of the Company own any Company Common Stock.
(d) Except for this Agreement, there are no stockholder agreements, voting trusts or other type agreements or understandings to which the Company or any of equity interests its Subsidiaries is a party relating to the voting of any shares of capital stock of the Company or granting to any Person the right to elect, or to designate or nominate for election, a director to the Company Board or any of its Subsidiaries. Immediately following the consummation of the Merger, and the conversion of Options and Warrants pursuant to Sections 2.4 and 2.5 above, respectively, there will not be outstanding any rights, warrants, options or other securities entitling the holder thereof to purchase, acquire or otherwise receive any shares of the capital stock of the Company or any Subsidiary or obligating the Company of its Subsidiaries (or any Subsidiary to issue other securities exercisable for or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information convertible into such shares).
(e) There are no accrued and unpaid dividends with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Merger Agreement (North American Galvanizing & Coatings Inc), Merger Agreement (Azz Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are 80,000,000 shares of Company Common Stock, of which as of March 31, 2004, (A) 26,362,679 shares were issued and outstanding, all of which are validly issued, fully paid outstanding and nonassessable. As of December 10, 2007, (iB) 67,000 Shares are no shares were issued and held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries Company and (ii) 6,628,083 Shares 10,000,000 shares of Company Preferred Stock, of which on the date hereof none are reserved for future issuance pursuant to issued and outstanding. Since March 31, 2004, no Equity Securities of the Company have been issued by the Company, except Company Common Stock issued upon exercise of outstanding Company Stock Options and or under the Company Stock Awards granted pursuant Purchase Plans.
(b) As of March 31, 2004, there were (i) outstanding Company Stock Options permitting the holders thereof to purchase 5,199,967 shares of Company Common Stock and (ii) 19,507,481 shares of Company Common Stock reserved in respect of the Company Stock Plans and the ESPPCompany Stock Purchase Plans. As Each of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests outstanding Equity Securities of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock ofis, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to and each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) Equity Security issuable upon the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject to issuance as aforesaidwill be, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly when issued, fully paid and nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and has not been, or will not be, issued in violation of (nor are any of the authorized Equity Securities of the Company subject to) any preemptive or similar rights. No Equity Securities of the Company are reserved for issuance. There are no (i) outstanding securities, options or warrants, agreements or commitments of any character to which the Company or any of its Subsidiaries is a party obligating the Company or any of its Subsidiaries to grant, issue, deliver or sell, or cause to be granted, issued, delivered or sold, any Equity Securities of the Company or any of its Subsidiaries, (ii) stock appreciation rights or similar derivative securities or rights of the Company or any of its Subsidiaries or any obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any Equity Securities of the Company or any of its Subsidiaries or (iii) agreements or commitments of any character (contingent or otherwise) pursuant to which any Person is or may be entitled to receive any payment based on the level of consolidated revenues or earnings, or calculated in accordance therewith, of the Company. There are no obligations, contingent or otherwise, of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Equity Securities of the Company or any of its Subsidiaries. None of the Company nor any of its Subsidiaries directly or indirectly owns, has agreed to purchase or otherwise acquire or holds any interest convertible into or exchangeable or exercisable for, any Equity Securities of any Person (other than the Subsidiaries of the Company).
(c) All the issued and outstanding shares of Equity Securities of each such share is Subsidiary of the Company, (i) have been duly authorized and are validly issued, and, with respect to capital stock, are fully paid and nonassessable, and were not issued in violation of any preemptive or similar rights and (ii) are owned by the Company or another Subsidiary one of its Subsidiaries free and clear of all security interestsLiens.
(d) Other than the Voting Agreements, liensthere are no voting trusts, claims, pledges, options, rights of first refusal, proxies or other agreements, limitations on commitments or understandings of any character to which the Company’s Company or any Subsidiary’s of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound with respect to the voting rights, charges and other encumbrances of any nature whatsoeverEquity Securities of the Company or any of its Subsidiaries.
(e) Except for Company Stock Options and rights to purchase Company Common Stock pursuant to the Company Stock Purchase Plans, neither the Company nor any of its Subsidiaries has any outstanding bonds, debentures, notes or other obligations the holder of which has the right to vote or which are convertible into, or exchangeable for, securities having the right to vote with the stockholders of the Company or any of its Subsidiaries on any matter.
Appears in 2 contracts
Sources: Merger Agreement (Marimba Inc), Merger Agreement (BMC Software Inc)
Capitalization. (a) The authorized capital stock shares of the Company consists consist of 100,000,000 Shares and 5,000,000 1,750,000,000 shares of Company Common Stock and 50,000,000 preferred stockshares, par value $0.001 0.01 per share (“Company Preferred StockShares”). As At the close of December 7business on August 30, 20072024 (the “Capitalization Date”), (i) 38,012,846 Shares are 248,998,055 shares of Company Common Stock were issued and outstanding and (ii) no Company Preferred Shares were issued or outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10the Capitalization Date, 200716,996,356 shares of Company Common Stock were reserved and available for issuance pursuant to the Equity Plans, of which amount (iA) 67,000 Shares are held in the treasury 2,430,378 shares of Company Common Stock were subject to outstanding Company RSUs and (B) 4,712,574 shares of Company Common Stock were subject to outstanding Company PSUs (assuming attainment of the Companymaximum level of performance). As From the Capitalization Date through the date hereof, neither the Company nor any of December 8its Subsidiaries has issued any Company Securities (as defined below) other than pursuant to the vesting or settlement of Company RSUs and Company PSUs or the forfeiture or withholding of Taxes with respect to Company RSUs and Company PSUs. All outstanding shares of Company Common Stock have been duly authorized and validly issued and are fully paid, 2007nonassessable and not subject to, or issued in violation of, any purchase option, call option, right of first refusal, preemptive rights, subscription rights or any similar rights.
(b) Except as described in Section 3.02(a), as of the Capitalization Date, there were (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are issued, reserved for future issuance pursuant to or outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type equity or voting interests in, the Company, and no outstanding obligations to issue, deliver or sell or cause to be issued, delivered or sold any equity or voting interests in, the Company, (ii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting interests in, the Company, (iii) no outstanding options, warrants, calls, rights or other commitments or agreements to acquire from the Company, or that obligate the Company to issue, deliver or sell or cause to be issued, delivered or sold, any capital stock of, or other equity or voting interests in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interests in, the Company, (iv) no rights issued by or other obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interests in, the Company or any Subsidiary. Section 4.03 of (the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: items in clauses (i) the state or country in which the recipient resides; ), (ii) the particular plan pursuant to which the award was granted; ), (iii) the number of Shares subject to the award; and (iv), being referred to collectively as, the “Company Securities”) the exercise or purchase price of the award, if any; and (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way no other obligations by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary of its Subsidiaries to make any payments based on the price or value of any Company Securities. Other than the Equity Plans (including any award agreements thereunder), there are no outstanding agreements of any kind which obligate the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares Company Securities (other than pursuant to the forfeiture of, or withholding of Taxes with respect to, Company RSUs and Company PSUs), or obligate the Company to grant, extend or enter into any capital stock 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. Neither the Company nor any of its Subsidiaries is a party to any stockholders’ agreement, voting trust agreement, registration rights agreement or other type of equity interests of similar agreement or understanding relating to any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary Company Securities or any other person. Except as set forth in Section 4.03(bagreement relating to (A) the election, designation or nomination of any director of the Disclosure LetterCompany or any of its Subsidiaries or (B) the disposition, voting or dividends with respect to any Company Securities. Neither the Company nor any Subsidiary of the Company has outstanding bonds, debentures, notes or other indebtedness, or other securities, 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 on any matter.
(c) As of the date hereof, there are (i) no commitments issued, reserved for issuance or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock of, or other type equity or voting interest in, any Subsidiary of equity interests of each Subsidiary have been issued and granted in material compliance with the Company (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is except to the extent owned by the Company or another any other wholly owned Subsidiary of the Company), and no outstanding obligations to issue, deliver or sell or cause to be issued, delivered or sold any equity or voting interests in, any Subsidiary of the Company, (ii) no outstanding securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interests of any Subsidiary of the Company, (iii) no outstanding options, warrants, calls, rights or other commitments or agreements to acquire from any Subsidiary of the Company, or that obligate any Subsidiary of the Company to issue, deliver or sell or cause to be issued, delivered or sold, any capital stock of, or other equity or voting interests in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interests of any Subsidiary of the Company, (iv) no rights issued by or other obligations to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interests in, any Subsidiary of the Company (the items in clauses (i), (ii), (iii) and (iv), being referred to collectively as, the “Company Subsidiary Securities”) and (v) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the Company Subsidiary Securities (in each case, other than any such obligations solely among the Company and its wholly owned Subsidiaries). There are no outstanding agreements of any kind which obligate the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Subsidiary Securities, or obligate the Company or any of its Subsidiaries to grant, extend or enter into any such agreements relating to any Company Subsidiary Securities (other than any such agreements solely among the Company and its wholly owned Subsidiaries).
(d) The Company and its Subsidiaries own, directly or indirectly, all of the issued and outstanding equity securities of each of the Subsidiaries of the Company, free and clear of all security interestsLiens (other than transfer restrictions arising under applicable securities Laws), liensand, claimsexcept as would not, pledgesindividually or in the aggregate, optionsreasonably be expected to be material to the Company and its Subsidiaries, rights taken as a whole, all such outstanding equity securities have been duly authorized and validly issued and are fully paid, nonassessable and not subject to, or issued in violation of, any purchase option, call option, right of first refusal, agreementspreemptive rights, limitations on the Company’s subscription rights or any Subsidiary’s voting similar rights, charges and other encumbrances of any nature whatsoever.
Appears in 2 contracts
Sources: Merger Agreement (Verizon Communications Inc), Merger Agreement (Frontier Communications Parent, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 400,000,000 shares of Common Stock, 100,000,000 Shares and 5,000,000 shares of preferred stock, par value $0.001 0.01 per share share. At the close of business on May 21, 2020, there were 129,214,723 shares of common stock issued and outstanding. At the close of business on December 31, 2019 (the “Company Preferred StockCapitalization Date”). As of December 7, 2007, (i) 38,012,846 Shares are issued 5,147,288 shares of Common Stock were reserved and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved available for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans (excluding dividend equivalent units), of which amount (A) 711,400 shares of Common Stock were subject to outstanding Company Stock Options, (B) 550,767 Company RSUs (including dividend equivalent units) were outstanding and the ESPP. As of the date of this Agreement(C) 697,918 Company PRSUs (including dividend equivalent units) were outstanding, and (ii) no shares of Company Preferred Stock are preferred stock were issued and or outstanding. Section 3.02(a) of the Company Disclosure Letter sets forth the number of Company RSUs, Company PRSUs and deferred director stock awards that the Company has granted following the Capitalization Date and prior to the date hereof.
(b) Except as set forth described in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent3.02, there are (i) no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any outstanding shares of capital stock of, or other type equity or voting interests of equity interests any character in, the Company as of the date hereof other than shares that have become outstanding after the Capitalization Date which were reserved for issuance as of the Capitalization Date as set forth in Section 3.02(a), (ii) no outstanding securities of the Company convertible into or exercisable or exchangeable for shares of capital stock of, or other equity or voting interests of any character in, the Company, (iii) no outstanding obligations, options, warrants, rights, pledges, calls, puts, phantom equity, premptive rights, or other rights, commitments, agreements or arrangements of any character to acquire from the Company, or that obligate the Company to issue, any capital stock of, or other equity or voting interests (or voting debt) in, or any Subsidiary. Section 4.03 securities convertible into or exercisable or exchangeable for shares of capital stock of, or other equity or voting interests (or voting debt) in, the Company other than obligations under the Company Stock Plans in the ordinary course of business, (iv) no obligations of the Disclosure Letter sets forth Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interests (or voting debt) in, the following information Company (the items in clauses (i), (ii), (iii) and (iv) being referred to collectively as “Company Securities”) and (v) 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. There are no outstanding agreements of any kind which obligate the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities (other than pursuant to the cashless exercise of Company Stock Options or the forfeiture or withholding of Taxes with respect to each Company Stock Option and Options, Company Stock Award outstanding RSUs or Company PRSUs), 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. Except as set forth on Section 3.02(b) of December 8the Company Disclosure Letter, 2007: (i) none of the state Company or country in which any Subsidiary of the recipient resides; (ii) the particular plan pursuant Company is a party to which the award was granted; (iii) the number of Shares subject 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 award; (iv) disposition, voting or dividends with respect to any Company Securities. All outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and were not issued in violation of any purchase option, call option, right of first refusal, subscription right, preemptive or similar rights of a third Person, the exercise Company Charter Documents or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant agreement to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awardsis a party. All Shares subject to issuance as aforesaid, upon issuance on of the terms and conditions specified in outstanding shares of capital stock or equity interests of the instruments pursuant to which they are issuable, will be Company’s Subsidiaries have been duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual obligations non-assessable and none of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any such capital stock or other type of equity interests are subject to or were issued in violation of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth are not subject to and have not been issued in applicable contracts.
(c) Each outstanding share violation of capital stock any stockholders agreement, proxy, voting trust or other type of equity interests of each Subsidiary is duly authorizedsimilar agreement, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear of all security interests, liens, claims, pledges, optionsany preemptive rights, rights of first refusal, agreements, limitations on the Company’s refusal or any Subsidiary’s voting rights, charges and other encumbrances similar rights of any nature whatsoeverPerson, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
Appears in 2 contracts
Sources: Investment Agreement (KAR Auction Services, Inc.), Investment Agreement (KAR Auction Services, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 (i) 9,600,000 Shares and 5,000,000 (ii) 2,000,000 shares of preferred stock, par value $0.001 10.00 per share (the “Company Preferred Stock”). As of December 7, 2007the date hereof, (i) 38,012,846 4,298,786 Shares are issued and outstanding, all (ii) no shares of which Preferred Stock are validly issued, fully paid issued and nonassessable. As of December 10, 2007outstanding, (iiii) 67,000 no Shares are issued and held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (iiiv) 6,628,083 a total of 811,101 Shares are reserved for future issuance pursuant to upon the exercise of outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPPOptions. As All of the date of this Agreement, no outstanding shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03the Company’s capital stock are, and except for the Merger Option and the rights (the “Rights”) all Shares which may be issued pursuant to the Preferred Stock Rights Agreementexercise of outstanding Options will be, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenon-assessable. There are is no outstanding contractual obligations indebtedness having general voting rights (or convertible into securities having such rights) (“Voting Debt”) of the Company or any Company Subsidiary issued and outstanding. Except as disclosed in this Section 3.3 or as set forth in Section 3.3(a) of the Company Disclosure Schedule, (i) there are no existing options, warrants, calls, pre-emptive rights, subscriptions or other rights, agreements, arrangements, understandings or commitments of any kind relating to the issued or unissued capital stock of, or other equity interests in, the Company or any Company Subsidiary obligating the Company or any Company Subsidiary to issue, transfer, register or sell or cause to be issued, transferred, registered or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any Company Subsidiary or securities convertible into or exchangeable for such shares or equity interests or other securities, or obligating the Company or any Company Subsidiary to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement, arrangement, understanding or commitment, and (ii) there are no outstanding agreements, arrangements, understandings or commitments of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any Shares or the capital stock of the Company or any capital stock or other type of equity interests of in any Company Subsidiary or any Person or to provide funds to, or to make any investment (in the form of a loan, capital contribution or otherwise) in, in any Company Subsidiary or any Person. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other personsimilar rights with respect to the Company or any Company Subsidiary.
(b) Section 3.3(b) of the Company Disclosure Schedule sets forth, with respect to each Option outstanding as of August 12, 2003, the number of Shares issuable therefor, and the purchase price payable therefor upon the exercise of each such Option. Since August 12, 2003, the Company has not granted or issued any Options. All of the Options have been granted to employees or directors of the Company in the ordinary course of business consistent with past practice. Except as set forth in Section 4.03(b3.3(b) of the Company Disclosure LetterSchedule, there are no commitments or all options granted under the Option Plans have been granted pursuant to option award agreements in substantially the form attached as an exhibit to Section 3.3(b) of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsDisclosure Schedule.
(c) Each outstanding share of capital stock There are no voting trusts or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by agreements or understandings to which the Company or another any Company Subsidiary free and clear is a party with respect to the voting of all security interests, liens, claims, pledges, options, rights the capital stock of first refusal, agreements, limitations on the Company’s Company or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoeverthe Company Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Dmi Furniture Inc), Merger Agreement (Flexsteel Industries Inc)
Capitalization. (a) The authorized capital stock of the -------------- Company consists of 100,000,000 Shares (1) 40,000,000 shares of Company Common Stock and 5,000,000 (2) 10,000,000 shares of preferred stock, par value $0.001 .001 per share (“"Company Preferred Stock”"). As of December 7March 31, 20072001, (i) 38,012,846 Shares are 4,126,757 shares of Company Common Stock were issued and outstanding, all of which shares of Company Common Stock were validly issued and are validly issuedfully paid, fully paid nonassessable and nonassessable. As free of December 10preemptive rights, 2007and no shares of Company Preferred Stock were issued and outstanding, (iii) 67,000 Shares are no shares of Company Common Stock and no shares of Company Preferred Stock were held in the treasury of the Company, (iii) 543,750 shares of Company Common Stock were reserved for issuance upon exercise of Options issued and outstanding. As Assuming the exercise of December 8all outstanding options, 2007as of March 31, 2001, there would be 4,670,507 shares of Company Common Stock issued and outstanding. Since March 31, 2001, except as permitted by this Agreement or as set forth in the Company Disclosure Schedule, (i) no Shares are held by shares of capital stock of the Subsidiaries Company have been issued except in connection with the exercise of the instruments referred to in the second sentence of this Section 4.02(a) and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant no options, warrants, securities convertible into, or commitments with respect to the Company Stock Plans and the ESPP. As issuance of, shares of capital stock of the date of this AgreementCompany have been issued, no shares of Company Preferred Stock are issued and outstanding. granted or made.
(b) Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”4.02(a), as amended on March 16, 2003, between of the Company and Mellon Investor Services, L.L.C., as rights agentdate hereof, there are no outstanding subscriptions, options, warrants calls, contracts, commitments, understandings, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other rights, agreements, arrangements or commitments of agreement and including any character relating to the issued or unissued capital stock rights plan or other type of equity interests of anti-takeover agreement, obligating the Company or any Subsidiary subsidiary of the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of the capital stock of the Company or obligating the Company or any Subsidiary subsidiary of the Company to issue grant, extend or sell enter into any such agreement or commitment. There are no outstanding stock appreciation rights or similar derivative securities or rights of the Company or any of its subsidiaries. Except as disclosed in the Company SEC Reports or as otherwise contemplated by this Agreement, there are no voting trusts, irrevocable proxies or other agreements or understandings to which the Company or any subsidiary of the Company is a party or is bound with respect to the voting of any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this AgreementCompany.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Merger Agreement (Raceland Truck Plaza & Casino LLC), Merger Agreement (Black Hawk Gaming & Development Co Inc)
Capitalization. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 100,000,000 Shares 50,000,000 shares of Company Common Stock, 30,612,301 of which are issued and 5,000,000 outstanding; 3,000,000 shares of preferred stock, no par value $0.001 per share (“Company share, of which 1,150,000 have been designated as Series D 7.75% Convertible Preferred Stock”). As , of December 7, 2007, (i) 38,012,846 Shares which 1,000,000 shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, 3,560,377 shares of Company Common Stock and no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital preferred stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan are reserved for issuance pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and all other employee benefit plans of the Company and 6,493,507 shares of Company Common Stock Awards that are currently outstanding reserved for the conversion of, and 6,052,631 shares of Company Common Stock are reserved for payment of Company Common Stock dividends on, the form of all award agreements evidencing such awardsCompany Preferred Stock. All Shares subject to issuance as aforesaid, upon issuance on of the terms issued and conditions specified in the instruments pursuant to which they outstanding shares of Company Common Stock are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are .
(b) Except as disclosed in this Section 4.2 or on Schedule 4.2(b), (i) there is no outstanding contractual obligations right, subscription, warrant, call, unsatisfied preemptive right, option or other agreement or arrangement of any kind to purchase or otherwise to receive from the Company or any of its Subsidiaries any of the outstanding authorized but unissued or treasury shares of the capital stock or any other security of the Company or any Subsidiary to repurchaseof its Subsidiaries, redeem as the case may be, (ii) there is no outstanding security of any kind convertible into or otherwise acquire any Shares or any exchangeable for such capital stock and (iii) there is no voting trust or other type of equity interests of any Subsidiary agreement or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character understanding to which the Company or any of its Subsidiaries is a party or is bound obligating with respect to the voting of the capital stock of the Company to accelerate the vesting or any of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsits Subsidiaries.
(c) Each outstanding share Except as set forth on Schedule 4.2(c), none of capital stock the awards, grants or other type agreements pursuant to which Company Stock Options were issued have provisions which accelerate the vesting or right to exercise such options upon the execution of equity interests this Agreement (including the documents attached as Exhibits hereto), the consummation of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company transactions contemplated hereby (or another Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s thereby) or any Subsidiary’s voting rights, charges and other encumbrances "change of any nature whatsoevercontrol" or similar events.
Appears in 2 contracts
Sources: Merger Agreement (Andrew Corp), Agreement and Plan of Merger (Allen Telecom Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 25,000,000 Shares and 5,000,000 shares of preferred stock, par value $0.001 .01 per share (“"Company Preferred Stock”"). As of December 7October 11, 20072000, (ia) 38,012,846 10,709,064 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (ib) 67,000 no Shares are held in the treasury of the Company. As of December 8, 2007, (ic) no Shares are held by the Subsidiaries Subsidiaries, and (iid) 6,628,083 1,383,996 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards employee stock options or stock incentive rights granted pursuant to the Company Stock Option Plans and the ESPPof which 613,457 options have vested as of October 11, 2000. As of the date of this Agreementhereof, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights as contemplated under Stockholders' Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) 4.03 of the Disclosure LetterSchedule, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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 's or any Subsidiary’s 's voting rights, charges and other encumbrances of any nature whatsoever. Section 4.03 of the Disclosure Schedule sets forth a true and correct list of all of the options of the Company which can vest over the ninety day period beginning from the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Ericsson MPD Acquisition Corp), Merger Agreement (Microwave Power Devices Inc)
Capitalization. (a) The As of April 16, 2014, the authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 (i) 50,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock”). As of December 7share, 2007, (i) 38,012,846 Shares are issued and outstanding, all of which no shares are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries outstanding and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no 450,000 shares of Company Preferred Stock Common Stock, of which 243,664.25 shares are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests No shares of the Company or any Subsidiary or obligating are held in treasury. Section 5.4(a) of the Company or any Subsidiary to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter Schedule sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which names of the recipient resides; holders of record and beneficial owners of all shares of Common Stock and the number of shares held by each such holder and (ii) the particular plan pursuant to which names of the award was granted; (iii) holders of each outstanding Option, the number of Shares shares of Common Stock subject to the award; (iv) thereto and the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreementthereof.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is Common Stock are duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by were issued in compliance with applicable securities Laws or exemptions therefrom and, except as set forth in Section 5.4(b) of the Company Disclosure Schedule, were not subject to or another Subsidiary free and clear issued in violation of all security interestsany purchase option, lienscall option, claims, pledges, options, rights right of first refusal, agreementspreemptive right, limitations on the Company’s subscription right or any Subsidiary’s voting similar right under any provision of the DGCL, the certificate of incorporation or by-laws of the Company or any Subsidiary or any Contract to which the Company is a party or otherwise bound.
(c) Except as set forth above and in Section 5.4(c) of the Company Disclosure Schedule, there are not any options, warrants, rights, charges and other encumbrances convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any nature whatsoeverkind to which the Company or any of its Subsidiaries is a party or by which any of them is bound 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 or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any of its Subsidiaries.
(d) Except as set forth in Section 5.4(d) of the Company Disclosure Schedule, there are not any outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries.
(e) None of the Company nor any of its Subsidiaries is a party to any Contract, right of first refusal, right of first offer, proxy, voting agreement, voting trust, registration rights agreement or stockholders agreement regarding the purchase, sale or voting, after the date hereof, of any shares of capital stock of the Company or any of its Subsidiaries or any securities convertible into or exchangeable or exercisable for any shares of capital stock of the Company or any of its Subsidiaries, other than this Agreement and except as set forth on Section 5.4(e) of the Company Disclosure Schedule.
Appears in 2 contracts
Sources: Merger Agreement (Michael Foods Group, Inc.), Merger Agreement (Post Holdings, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 150,000,000 shares of Company Common Stock and 5,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock”)share. As of December 7October 20, 20071998, (i) 38,012,846 Shares are 27,768,782 shares of Company Common Stock were issued and outstanding, all of which have been duly authorized and validly issued and are validly issued, fully paid and nonassessable. As of December 10, 2007non-assessable, (iii) 67,000 Shares are no shares of preferred stock were issued or outstanding, (iii) 2,469,900 shares of Company Common Stock were held in the treasury of the Company. As of December 8, 2007, (iiv) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are 2,142,638 shares of Company Common Stock were reserved for future issuance pursuant to outstanding Options granted under the Employee Plan, (v) 746,844 shares of Company Common Stock Options and Company Stock Awards granted were reserved for future issuance pursuant to future option grants under the Employee Plan, (vi) 4,290 shares of Company Common Stock Plans were reserved for future issuance pursuant to outstanding Options granted under the Directors' Plan, (vii) 94,867 shares of Company Common Stock were reserved for future issuance pursuant to future option grants under the Directors' Plan, and the ESPP. As of the date of this Agreement, (viii) no shares of Company Preferred Stock are issued preferred stock were reserved for issuance. No change in such capitalization has occurred between October 20, 1998 and outstandingthe date hereof other than any change associated with the exercise of vested Options. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as 3.03 or Section 3.11 hereof or in Section 3.03 or Section 3.11 of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Schedule, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary of its subsidiaries or obligating the Company or any Subsidiary of its subsidiaries to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awardsits subsidiaries. All Shares 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, will be duly authorized, validly issued, fully paid and nonassessablenon-assessable. There Except as is set forth in Section 3.03 of the Company Disclosure Schedule, there are no outstanding contractual obligations obligations, contingent or otherwise, of the Company or any Subsidiary of its subsidiaries to repurchase, redeem or otherwise acquire any Shares or any shares of capital stock of the Company or other type of equity interests the capital stock of any Subsidiary subsidiary or to provide funds to, to or make any investment (in the form of a loan, capital contribution or otherwise) in, in any Subsidiary such subsidiary or any other personentity other than guarantees of bank obligations of subsidiaries entered into in the ordinary course of business. Except as set forth in Section 4.03(b) All of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is the Company's subsidiaries are duly authorized, validly issued, fully paid and nonassessablenon-assessable, and, other than as pledged pursuant to the Credit Agreement, dated as of October 31, 1996, as amended and each restated as of March 27, 1998, among the Company, Essex Group, Inc., the lenders named therein and The Chase Manhattan Bank and other than directors' or similar de minimis statutory qualifying shares, all such share is shares are owned by the Company or another Subsidiary subsidiary, free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on in the Company’s or any Subsidiary’s 's voting rights, charges and or other encumbrances of any nature whatsoever.
Appears in 2 contracts
Sources: Merger Agreement (Superior Telecom Inc), Merger Agreement (Superior Telecom Inc)
Capitalization. (a) The authorized capital stock of the Company consists entirely of 100,000,000 Shares 30,000,000 shares of common stock, par value $1.00 per share, and 5,000,000 10,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company share, of which 30,000 shares have been designated as Series A Junior Participating Preferred Stock”). As of December 7the close of business on June 29, 20072006, (i) 38,012,846 12,498,973 Shares are were issued and outstanding, all (ii) no shares of which are validly issued, fully paid preferred stock of the Company were issued and nonassessable. As of December 10, 2007outstanding, (iiii) 67,000 no Shares are were issued and held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (iiiv) 6,628,083 1,957,636 Shares are were reserved for future issuance pursuant to the Plans, of which 1,401,347 Shares were subject to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPPOptions. As of the date of this AgreementThere are no bonds, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03debentures, and except for the Merger Option and the notes or other Indebtedness having general voting rights (the “Rights”or convertible into securities having such rights) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary issued and outstanding (“Voting Debt”). All of the outstanding shares of capital stock of the Company and each of the Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable. Except as set forth on Schedule 5.3, all outstanding shares of capital stock of, or comparable equity interests in, the Company’s Subsidiaries are owned by the Company or a direct or indirect wholly owned Subsidiary of the Company, free and clear of all Liens of any nature. Schedule 5.3 sets forth a listing of all outstanding vested and unvested Options as of the date hereof (indicating which Options will vest upon consummation of the Merger) and the exercise prices thereof. Except as set forth on Schedule 5.3, there are not any outstanding or authorized subscriptions, options, warrants, puts, calls, rights (including preemptive rights), commitments, “phantom” stock rights, stock appreciation rights, stock-based performance units, Contracts, arrangements or any other agreements of any character to which the Company or any of its Subsidiaries is a party, or by which any of them may be bound, relating to, or obligating the Company or any Subsidiary with respect to, the issuance, transfer, sale, purchase, grant, redemption, voting, acquisition or disposition of any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to issue or sell subscribe for, any shares of capital stock of, or other type of comparable equity or voting interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations other securities of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds toits Subsidiaries, or make that give any investment (in Person the form right to receive any economic benefit or right similar to or derived from the economic benefits and rights accruing to holders of a loan, capital contribution or otherwise) in, any Subsidiary or any other personthe Shares. Except as set forth in Section 4.03(b) of the Disclosure Letteron Schedule 5.3, there are no commitments voting trusts or other agreements of any character or understandings to which Company or any Subsidiary is a party with respect to the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result voting, issuance or transfer of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear any 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 whatsoeverSubsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Molex Inc), Merger Agreement (Molex Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 (i) 230,000,000 Company Common Shares, (ii) 25,000,000 shares of preferred stock, $0.001 par value per share, of which 3,500,000 are classified as shares of Company Series B Preferred Stock and (iii) 5,000,000 shares of excess stock, $0.001 par value per share (“Company Preferred Stock”)share. As At the close of December 7business on June 30, 20072015, (iA) 38,012,846 57,372,244 Company Common Shares are were issued and outstanding, all (B) 3,500,000 shares of which Company Series B Preferred Stock were issued and outstanding, and (C) no shares of any other class or series of stock of the Company were issued and outstanding. All of the outstanding Company Common Shares and shares of Company Series B Preferred Stock have been duly authorized and are validly issued, fully paid and nonassessable. As of December 10Except for 259,893 Restricted Company Share Awards, 200751,538 Company Options, (i) 67,000 Shares are held 202,500 Company RSU Awards, 23,091 Company ESPP Awards, 156,124 Phantom Share Awards, and 204,893 LTIP Units, in the treasury of the Company. As of December 8each case, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to under the Company Stock Plans Equity Plans, as applicable, or the Company Convertible Notes, the Company Series B Preferred Stock, and the ESPP. As of the date of this Agreement, no shares limited partnership interests of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentOpCo, there are no (x) options, warrants warrants, calls, pre-emptive rights, subscriptions or other rights, agreements, arrangements or commitments of any character kind, including any stockholder rights plan, relating to the issued or unissued capital stock or other type shares of equity interests of the Company, obligating the Company or any Subsidiary of its Subsidiaries to issue, transfer or sell or cause to be issued, transferred or sold any shares of, or other equity interest in, the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or equity interests, or obligating the Company or any Subsidiary of its Subsidiaries to issue grant, extend or sell enter into any shares of capital stock ofsuch option, warrant, call, subscription or other type of equity interests insimilar right, the agreement, arrangement or commitment (collectively, “Company Equity Interests”) or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award (y) outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any Company Common Shares or any capital stock shares of, or other type Company Equity Interests in, the Company or any of equity interests of any Subsidiary its Subsidiaries, or to provide funds to, or to make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary in the Company or any other person. Except as set forth in Section 4.03(bof its Subsidiaries.
(b) of the Disclosure Letter, there There are no commitments voting trusts, proxies or other similar agreements of any character to which the Company or any of its Subsidiaries is bound obligating a party with respect to the voting of the Company to accelerate the vesting of Common Shares or any Company Stock Option as a result shares of, or other Equity Interest, of the Offer Company or any of its Subsidiaries. Neither the Merger. All outstanding SharesCompany nor any of its Subsidiaries has granted any preemptive rights, all outstanding Company Stock Options and Company Stock Awards and all outstanding anti-dilutive rights or rights of first refusal or similar rights with respect to any of its shares of capital stock or other type Company Equity Interests. There are no bonds, debentures or notes issued by the Company or any of equity interests its Subsidiaries that entitle the holder thereof to vote together with stockholders of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsthe Company on any matters related to the Company.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the The Company or another Company Subsidiary owns, directly or indirectly, all of the issued and outstanding shares or other Company Equity Interests of each of the Company Subsidiaries, free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, any Liens (other than limitations on the Company’s or any Subsidiary’s voting rights, charges transfer and other encumbrances restrictions imposed by federal or state securities Laws), and all such shares or other Company Equity Interests have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
(d) All dividends or other distributions on the Company Common Shares and any material dividends or other distributions on any securities of any nature whatsoeverCompany Subsidiary which have been authorized or declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Chambers Street Properties), Merger Agreement (Gramercy Property Trust Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 70,000,000 Shares and 5,000,000 shares of preferred stock, par value $0.001 per share (“"Company Preferred Stock”"). As At the close of business on December 731, 20071996, (i) 38,012,846 8,955,603 Shares are were issued and outstanding, (ii) 0 Shares were held by the Company in its treasury, (iii) 1,597,250 Shares were reserved for issuance upon exercise of outstanding Company Stock Options (as defined in Section 7.04), (iv) 102,482 Shares were issuable upon the exercise of outstanding warrants and (v) no shares of Company Preferred Stock were issued and outstanding. Except as set forth above, since December 31, 1996 no shares of capital stock or other voting securities of the Company were issued, reserved for issuance, issuable or outstanding. All outstanding Shares are, and all of Shares which are may be issued will be, when issued, duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights. As of December 10There are no bonds, 2007debentures, (i) 67,000 Shares are held in the treasury notes or other indebtedness of the Company. As 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 December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and may vote. Except as set forth above, as of the ESPPdate of this Agreement, there are not any securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company is a party or by which any of them is bound obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of the Company or obligating the Company to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of not any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Merger Agreement (Chase Venture Capital Associates L P), Merger Agreement (Johnson & Johnson)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no the Company’s authorized capital stock consists of a total of 201,000,000 shares, divided into 200,000,000 shares of Company Common Stock and 1,000,000 shares of Company Preferred Stock, which shares of Company Preferred Stock are further divided into 100 shares of Series A Preferred Stock, par value $0.001 per share, of the Company (the “Series A Preferred Stock”), 200,000 shares of Series B Preferred Stock, par value $0.001 per share, of the Company (the “Series B Preferred Stock. As of the close of business on the date of this Agreement, (i) 121,751,901 shares of Company Common Stock were issued and outstanding. , (ii) no shares of Series A Preferred Stock were issued and outstanding, (iii) 20,000 shares of Series B Preferred Stock were issued and outstanding, and (iv) warrants exercisable for up to 250,000 shares of Company Common Stock at a weighted average per share exercise price of $1.164 were issued and outstanding.
(b) Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”3.06(a) issued pursuant or to the Preferred Stock Rights Agreement, dated extent expressly permitted under Section 6.01 (including as of June 27, 2002 required by applicable Law) (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, i) there are no other outstanding shares of capital stock of the Company, (ii) there are no outstanding subscriptions, options, warrants warrants, calls, convertible securities, rights of first refusal, preemptive rights, or other similar rights, agreements, arrangements agreements or commitments of any character relating to the issued issuance or unissued acquisition of capital stock or limited liability company interests to which the Company or any of its Subsidiaries is a party obligating the Company or any of its Subsidiaries to (A) issue, transfer or sell any shares of capital stock, limited liability company interests or other type of equity interests of the Company or any Subsidiary of its Subsidiaries or obligating the Company securities convertible into or exchangeable for such shares or equity interests, (B) grant, extend or enter into any Subsidiary to issue or sell any shares of capital stock ofsuch subscription, option, warrant, call, convertible securities or other type of equity interests insimilar right, the Company agreement or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8arrangement, 2007: (iC) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the awardredeem, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any such shares of capital stock stock, limited liability company or other type equity interests, or (D) provide an amount of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, in the Company or any Subsidiary of its Subsidiaries or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsPerson.
(c) All outstanding shares of Company Common Stock and Company Preferred Stock have been duly authorized and are validly issued, fully paid and non-assessable, and not subject to any preemptive rights.
(d) Each outstanding share of capital stock stock, limited liability company interest, or other type of equity interests of each Subsidiary of the Company is duly authorized, validly issued, fully paid and nonassessablepaid, and non-assessable, and in each case, to the extent such share is owned by concepts are applicable to such capital stock, limited liability company interests, or other equity interests, not subject to any preemptive rights.
(e) There are no outstanding contractual obligations of the Company or another any of its Subsidiaries to repurchase, redeem, or otherwise acquire any shares of Company Common Stock, shares of Company Preferred Stock, or any shares of capital stock or limited liability company interests of any 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.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Fusion Fuel Green PLC), Stock Purchase Agreement (Ilustrato Pictures International Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 20,000,000 shares of preferred stockCompany Common Stock and 1,000,000 shares of Preferred Stock, par value $0.001 1.00 per share share, of the Company (“the "Company Preferred Stock”"). As of December 7, 2007the date hereof, (i) 38,012,846 Shares 5,072,848 shares of Company Common Stock are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, (iii) Company Stock Options to acquire 1,842,668 shares of Company Common Stock are outstanding under all stock option plans of the Company or otherwise, (iv) Company Warrants to acquire 106,420 shares of Company Common Stock are outstanding, and except (v) 2,524,090 shares of Company Common Stock are reserved for the Merger Option and the rights (the “Rights”) issued issuance pursuant to the Preferred Company Stock Rights AgreementOptions, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company Warrants and Mellon Investor Services, L.L.C., all other Rights (as rights agent, there are no options, warrants hereinafter defined) to purchase or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued otherwise receive capital stock or other type of equity interests securities of the Company or any Subsidiary or obligating Company. All of the Company or any Subsidiary to issue or sell any issued and outstanding shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Common Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are .
(b) Except as set forth on Schedule 4.2(b), (i) there is no outstanding contractual obligations right, subscription, warrant, call, option or other agreement or arrangement (including, without limitation, pursuant to any employee benefit plan) of any kind (collectively, "Rights") to purchase or otherwise to receive from the Company or any of its Subsidiaries, any of the outstanding authorized but unissued or treasury shares of the capital stock or any other security of the Company or any Subsidiary of its Subsidiaries or to repurchaserequire the Company or any of its Subsidiaries to purchase any such security, redeem (ii) there is no outstanding security of any kind convertible into or exchangeable for such capital stock, and (iii) there is no voting trust or other agreement or understanding to which the Company or any of its Subsidiaries is a party or is bound with respect to the voting of the capital stock of the Company or any of its Subsidiaries. The conversion of the Company Stock Options provided for in Section 7.8 of this Agreement is in accordance with the respective terms of the Company Stock Options and the plans under which they were issued.
(c) Since December 1, 1995, except as set forth on Schedule 4.2(c), the Company has not in any manner accelerated or provided for the acceleration of the vesting or exercisability of, or otherwise acquire modified the terms and conditions applicable to, any Shares or any capital of the Company Stock Options, whether set forth in the governing stock option plans of the Company, a stock option grant, award or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution agreement or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) on Schedule 4.2(c), none of the Disclosure Letterawards, there are no commitments grants or other agreements of any character pursuant to which the Company is bound obligating the Company to Stock Options were issued have provisions which accelerate the vesting or right to exercise such options upon the execution of any Company Stock Option this Agreement (including the documents attached as a result Exhibits hereto), the consummation of the Offer transactions contemplated hereby (or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (ithereby) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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 "change of any nature whatsoevercontrol" events.
Appears in 2 contracts
Sources: Merger Agreement (Micro Bio Medics Inc), Merger Agreement (Schein Henry Inc)
Capitalization. As of May 3, 2000, the Company had a total authorized capitalization consisting of (ai) 40,000,000 shares of Common Stock, of which 11,740,244 shares were outstanding, and (ii) 1,000,000 shares of preferred stock, $.01 par value per share, of which no shares were outstanding. As of such date, there were outstanding options to acquire a total of 2,679,973 shares of Common Stock and outstanding warrants to acquire a total of 26,665 shares of Common Stock. Except as set forth above, no shares of capital stock or other voting securities of the Company are issued, reserved for issuance or outstanding. Except as set forth above, as of the date of this Stock Purchase Agreement, there are not any 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 is a party or by which it is bound (i) obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or any indebtedness of the Company entitled to vote on any matters on which holders of shares of Common Stock may vote or (ii) obligating the Company to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking. The authorized outstanding shares of capital stock of the Company consists of 100,000,000 Shares have been duly and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are validly issued and outstandingare fully paid and nonassessable. The Shares have been duly authorized and, all when issued and paid for pursuant to the terms of which are this Stock Purchase Agreement, will be validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Schering Berlin Inc), Stock Purchase Agreement (Epix Medical Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares (i) 45,000,000 shares of common stock, par value $0.01 per share, of the Company (“Company Common Stock”) and 5,000,000 (ii) 500,000 shares of preferred stock, par value $0.001 1.00 per share share, of the Company (“Company Preferred Stock”), 450,000 shares of which Company Preferred Stock have been designated Series A Junior Participating Preferred Stock. As At the close of December 7business on March 5, 20072014, (i1) 38,012,846 Shares are 27,988,392 shares of Company Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i2) no Shares are shares of Company Common Stock were held by the Subsidiaries Company in its treasury, (3) no shares of Company Preferred Stock were outstanding and (ii4) 6,628,083 Shares are 103,590 shares of Company Common Stock were reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Equity Awards granted pursuant to under the Company Stock Plans and Plans.
(b) Except as set forth in Section 4.2(a), at the ESPPclose of business on March 5, 2014, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. As of From March 5, 2014, until the date of this Agreement, there have been no issuances by the Company of shares of Company Preferred Stock are issued and outstandingcapital stock of, or other equity or voting interests in, the Company. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”4.2(a), as amended on March 16, 2003, between of the Company and Mellon Investor Services, L.L.C., as rights agentdate hereof, there are no options, warrants warrants, convertible or exchangeable securities, subscriptions, stock appreciation rights, phantom stock rights or stock equivalents or other rights, agreements, arrangements or commitments (contingent or otherwise) of any character issued or authorized by the Company (i) relating to the any issued or unissued capital stock or other type of equity interests interest of the Company or any Subsidiary or Company, (ii) obligating the Company to issue, deliver or any Subsidiary sell, or cause to issue be issued, delivered or sell sold, any shares of capital stock of, or options, warrants, convertible or exchangeable securities, subscriptions or other type of equity interests in, in the Company or (iii) that give any Subsidiary. Section 4.03 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 the Disclosure Letter sets forth the following information with respect to Company (each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; ), (ii) the particular plan pursuant to which the award was granted; and (iii) ), collectively, the number “Company Stock Rights”). All outstanding shares of Shares subject Company Common Stock are, and all shares of Company Common Stock that may be issued prior to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award Effective Time will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject to issuance as aforesaidwhen issued, 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 no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or equity interest of the Company (including any shares of Company Common Stock) or any Company Stock Rights or to pay any dividend or make any other type of equity interests of any Subsidiary distribution in respect thereof or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any Person, other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character than pursuant to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsBenefit Plans.
(c) Each outstanding share of capital stock The Company does not directly or indirectly own or have any right or obligation to subscribe for or otherwise acquire any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for, any corporation, partnership, joint venture or other type business association or entity.
(d) Section 4.2(d) of equity interests the Company Disclosure Letter includes a complete list, as of the date hereof, of each Subsidiary is duly authorizedoutstanding Equity Award, validly issued, fully paid and nonassessable, and the number of shares of Common Stock underlying each Equity Award (including the maximum number of shares of Common Stock underlying each such share is owned by Equity Award), the Company Stock Plan under which the Equity Award was granted and the applicable vesting schedule.
(e) Except for the Rights Agreement, the Company has no rights plan or another Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s other similar agreement or arrangement or any Subsidiary’s voting rightsanti-takeover provision in the Company Organizational Documents that is, charges and or at the Effective Time shall be, applicable to Parent, Purchaser, the Offer, the Merger or the other encumbrances of any nature whatsoevertransactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Bank Jos a Clothiers Inc /De/), Merger Agreement (Mens Wearhouse Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 (i) forty million (40,000,000) shares of preferred stock, par value $0.001 per share Company Common Stock and (“ii) five million (5,000,000) shares of Company Preferred Stock”). As of December 7the close of business on April 30, 2007, 2008: (iA) 38,012,846 Shares are 12,104,522 shares of Company Common Stock were issued and outstanding, all (B) no shares of which are Company Preferred Stock were issued and outstanding and (C) 647,199 shares of Company Capital Stock were held by the Company as treasury shares. All issued and outstanding shares of Company Common Stock have been validly issued, fully paid paid, nonassessable and nonassessableare free of any preemptive rights. As Since the close of December 10business on April 30, 20072008, the Company has not issued any shares of Company Capital Stock other than pursuant to the exercise of Company Options granted under a Company Option Plan.
(b) Section 3.4(b) of the Company Disclosure Schedule specifies (i) 67,000 Shares the number of shares of Company Common Stock that are held in the treasury subject to issuance pursuant to Company Options, Company Restricted Stock and Restricted Stock Units outstanding as of the Company. As close of December 8business on April 30, 2007, (i) no Shares are held by the Subsidiaries 2008 and (ii) 6,628,083 Shares are the exercise price for each Company Option. As of the close of business on April 30, 2008, 943,545 shares of Company Common Stock were reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards stock awards not yet granted pursuant to under the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Option Plans.
(c) Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent3.4, there are (i) no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any outstanding shares of capital stock of, or other type equity or voting interest in, the Company, (ii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity interests or voting interest in, the Company, (iii) no outstanding options, warrants, rights or other commitments or agreements to acquire from the Company, or that obligates the Company to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company, (iv) 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 stock of, or other equity or voting interest (including any voting debt) in, the Company or any Subsidiary. Section 4.03 of (the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: items in clauses (i) the state or country in which the recipient resides; ), (ii) the particular plan pursuant to which the award was granted; ), (iii) the number of Shares subject to the award; and (iv) ), together with the exercise or purchase price capital stock of the awardCompany, if any; being referred to collectively as “Company Securities”) or (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way no other obligations by the transactions contemplated by this Agreement.
(b) The Company has made available or any of its Subsidiaries to Parent accurate and complete copies make any payments based on the price or value of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessableSecurities. There are no outstanding contractual obligations Contracts of any kind which obligate the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsSecurities.
(cd) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by Neither the Company nor any of its Subsidiaries is a party to any Contracts restricting the transfer of, relating to the voting of, requiring registration of, or another Subsidiary free and clear of all security interestsgranting any preemptive rights, liens, claims, pledges, options, anti-dilutive rights or rights of first refusal, agreements, limitations on the Company’s refusal or similar rights with respect to any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoeverCompany Securities.
Appears in 2 contracts
Sources: Merger Agreement (Autodesk Inc), Merger Agreement (Moldflow Corp)
Capitalization. (a) The authorized capital stock issued and outstanding Units of the Company consists consist of 100,000,000 Shares and 5,000,000 shares of preferred stock2,488,800 Common Units, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are issued and outstanding, all each of which are validly issued, fully paid and nonassessable. As held of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except record as set forth in this Section 4.03, on Schedule 2.2(a). All of the issued and except for the Merger Option outstanding Common Units have been duly authorized and the rights (the “Rights”) validly issued pursuant to the Preferred Stock Rights AgreementCompany’s Organizational Documents and applicable Law. Immediately following the Closing, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of and outstanding equity interests of the Company will consist solely of (i) Preferred Units, (ii) Common Units, and (iii) Mistral Incentive Units, and Schedule 2.2(b) sets forth a capitalization table listing all equityholders of the Company and their respective ownership of such Preferred Units, Common Units, and/or Mistral Incentive Units as of immediately following the Closing and the consummation of the redemption transactions contemplated by Section 1.3(a). Other than the Subsidiaries, neither the Company nor any of its Subsidiaries owns or holds any equity interests in any Person. Except as expressly contemplated by this Agreement or the other Transaction Documents or as set forth on Schedule 2.2, (a) no capital stock, limited liability company interests or other equity securities (including any options, warrants or rights or other security convertible into or exercisable or exchangeable for any capital stock, limited liability company interest or other equity security) of the Company or any Subsidiary of its Subsidiaries are or obligating may become required to be issued by reason of any security, Contract or other obligation, (b) there are no Contracts, commitments or other obligations by which the Company or any Subsidiary is or may be bound to issue sell or sell any shares of capital stock of, otherwise transfer or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or register any capital stock stock, limited liability company interests or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) securities of the Disclosure LetterCompany, and (c) there are no Contracts, commitments or agreements other obligations relating to the right to vote or dispose of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Sharescapital stock, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock limited liability company interest or other type equity security of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Krispy Kreme, Inc.), Unit Purchase Agreement (Krispy Kreme, Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 shares 10,000,000 Shares. At the close of preferred stockbusiness on December 17, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 20071997, (i) 38,012,846 7,085,433 Shares are were issued and outstanding and (ii) 1,726,205 Shares were reserved for issuance upon exercise of options to purchase Shares ("Company Stock Options"). Except as set forth above, as of the close of business on December 17, 1997, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. All outstanding shares of capital stock of the Company are, and all of shares which are may be issued will be, when issued, duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights. As of December 10There are no bonds, 2007debentures, (i) 67,000 Shares are held in the treasury notes or other indebtedness of the Company. As 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 December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and may vote. Except as set forth above, as of the ESPPdate of this Agreement, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings 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 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 or other voting securities of the Company or any of its subsidiaries. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary of its subsidiaries to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear to vote or to dispose of all security interests, liens, claims, pledges, options, rights any shares of first refusal, agreements, limitations on the capital stock of any of the Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoever's subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (International Business Machines Corp), Merger Agreement (Software Artistry Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares (i) 10,000,000 shares of Class A common stock, par value $0.80 per share (the “Common Stock”), (ii) 200,000 shares of Class B common stock, par value $0.80 per share, and 5,000,000 (iii) 395,535 shares of preferred stock, par value $0.001 25.00 per share (“Company Preferred Stock”)share. As of December 7, 2007the date of this Agreement, (i) 38,012,846 3,698,230 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007entitled to vote on the Merger, (iii) 67,000 no shares of Class B common stock of the Company are issued and outstanding, (iii) no shares of preferred stock of the Company are issued and outstanding, and (iv) 2,403,946 Shares are issued and owned and held beneficially and of record in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As All of the date of this Agreement, no outstanding shares of Company Preferred the Company’s Common Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenon-assessable. There are Except as set forth in Section 3.3(a) of the Company Disclosure Schedule, (i) there is no outstanding contractual obligations indebtedness having general voting rights (or convertible into securities having such rights) (“Voting Debt”) of the Company or any Subsidiary of the Company issued and outstanding, (ii) there are no existing options, warrants, calls, pre-emptive rights, subscriptions or other rights, restricted stock awards, restricted stock unit awards, agreements, arrangements, understandings or commitments of any kind relating to the issued or unissued capital stock of, or other equity interests in, the Company or any Subsidiary of the Company obligating the Company or any Subsidiary of the Company to issue, transfer, register or sell or cause to be issued, transferred, registered or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any Subsidiary of the Company or securities convertible into or exchangeable for such shares or equity interests or other securities, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, call, subscription or other right, restricted stock award, restricted stock unit award, agreement, arrangement, understanding or commitment, and (iii) there are no outstanding agreements, arrangements, understandings or commitments of the Company or any Subsidiary of the Company to repurchase, redeem or otherwise acquire any Shares or the capital stock of the Company or any capital stock or other type of equity interests of in any Subsidiary Person or to provide funds to, or to make any investment (in the form of a loan, capital contribution or otherwise) inin any Person. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to the Company or any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there Company.
(b) There are no commitments stockholder agreements, voting trusts or other agreements of any character or understandings to which the Company is bound obligating or any Subsidiary of the Company is a party, or to accelerate the vesting Company’s knowledge, to which any stockholder of the Company is a party, relating to the voting or disposition of any Company Stock Option as a result shares of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another any Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s , or granting to any person or group of persons the right to elect, or to designate or nominate for election, a director to the board of directors of the Company or any Subsidiary’s voting rights, charges and other encumbrances Subsidiary of any nature whatsoeverthe Company.
Appears in 2 contracts
Sources: Purchase Agreement (Hospitality Properties Trust), Merger Agreement (Sonesta International Hotels Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares shares of common stock, par value $0.234 per share, and 5,000,000 50,000,000 shares of preferred stock, par value $0.001 0.01 per share (“"Company Preferred Stock”)") of which 9,600,000 shares have been designated as Series A Preferred Stock, 9,600,000 shares have been designated as Series B Preferred Stock and 10,400 shares have been designated as Series C Preferred Stock. As of December 7, 2007the date hereof, (ia) 38,012,846 12,649,522 Shares are were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (ib) 67,000 100,000 Shares are held in the treasury of the Company. As of December 8, 2007, (ic) no Shares are held by the Subsidiaries and Subsidiaries, (iid) 6,628,083 522,500 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards stock options or stock incentive rights granted pursuant to the Company Stock Option Plans and (e) 265,000 Shares are reserved for future issuance pursuant to exercise of the ESPPWarrants. As of the date of this Agreementhereof, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for 4.03 or in Section 4.03 of the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Schedule, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the -13- Disclosure Letter Schedule sets forth the following information with respect to each Company Stock Option and Company Stock Award Warrant outstanding as on the date of December 8, 2007this Agreement: (i) the state name of the Option or country in which the recipient residesWarrant holder; (ii) the particular plan pursuant to which the award such Company Stock Option was granted; (iii) the number of Shares subject to the awardsuch Company Stock Option or Warrant; (iv) the exercise or purchase price of the award, if anysuch Company Stock Option or Warrant; (v) the date on which the award such Company Stock Option or Warrant was grantedgranted or issued; (vi) the applicable vesting schedule; (vii) the date on which the award such Company Stock Option or Warrant expires; and (viii) whether the vesting, exercisability of such Option or right to repurchase of such award Warrant will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth disclosed in Section 4.03(b) 4.03 of the Disclosure LetterSchedule, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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 's or any Subsidiary’s 's voting rights, charges and other encumbrances of any nature whatsoever.
Appears in 2 contracts
Sources: Merger Agreement (Devx Energy Inc), Merger Agreement (Comstock Resources Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 14,000,000 shares of Company Common Stock and 5,000,000 2,000,000 shares of preferred stock, without par value $0.001 per share value, of the Company (“the "Company Preferred Stock”"). As At the close of December 7business on October 21, 20072003, (i) 38,012,846 there were 9,060,695 Shares are issued and outstanding and no shares of Company Preferred Stock issued and outstanding. All Shares have been duly authorized and validly issued and are fully paid, all nonassessable and free of which are validly issuedpreemptive rights. Since March 31, fully paid and nonassessable. As of December 102003, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPPhas 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. As of the date of this AgreementAgreement there are not, no any shares of capital stock, voting securities or equity interests of the Company Preferred Stock are issued and outstanding. outstanding or any subscriptions, options, warrants, calls, convertible or exchangeable securities, rights, commitments or agreements of any character providing for the issuance of any shares of capital stock, voting securities or equity interests of the Company, including any representing the right to purchase or otherwise receive any Company Common Stock.
(b) (i) Except as set forth in this Section 4.033.02(b) of the Company Disclosure Schedule, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock, voting securities and equity interests of each of its subsidiaries, free and clear of any liens, pledges, charges, mortgages, encumbrances, adverse rights or claims and security interests whatsoever (including any restriction on the right to vote or transfer the same, except for such transfer restrictions of general applicability as may be provided under the Securities Act of 1933, as amended, and except for the Merger Option rules and regulations promulgated thereunder (the "Securities Act"), and the rights "blue sky" Laws of the various States of the United States) (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”"Liens"), as amended on March 16and all of such shares, 2003securities and interests are duly authorized and validly issued and are fully paid and nonassessable, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests (ii) none of the Company or any Subsidiary of its subsidiaries has issued or obligating is bound by any outstanding subscriptions, options, warrants, calls, convertible or exchangeable securities, rights, commitments or agreements of any character providing for the Company issuance or any Subsidiary to issue or sell disposition of any shares of capital stock ofstock, voting securities or other type of equity interests in, the Company or of any Subsidiary. Section 4.03 subsidiary of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this AgreementCompany.
(bc) The Company has made available to Parent accurate and complete copies Except as set forth in Section 3.02(c) of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject to issuance as aforesaidDisclosure Schedule, 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 there are no outstanding contractual obligations of the Company or any Subsidiary of its subsidiaries to repurchase, redeem or otherwise acquire any Shares shares of capital stock, voting securities or equity interests (or any capital stock options, warrants or other type rights to acquire any shares of capital stock, voting securities or equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(binterests) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear any 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 whatsoeverits subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Odd Job Stores Inc), Merger Agreement (Odd Job Stores Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 25,000,000 shares of Company Common Stock and 5,000,000 3,000,000 shares of preferred stock, par value $0.001 .01 per share (“"Company Preferred Stock”"). As of December 7, 2007the close of business on the date one business day prior to the date hereof, (i) 38,012,846 Shares are 13,311,307 shares of Company Common Stock were issued and outstanding, all (ii) no shares of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are Company Common Stock were held in the treasury of the Company. As of December 8, 2007, (iiii) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are were issued or outstanding, (iv) 1,125,000 shares of Company Common Stock were reserved for issuance under the Company's employee stock option plans and the option agreements listed in Section 4.3(a) of the Company Disclosure Schedule in the amounts stated in such section and (v) there were no bonds, debentures, notes or other evidences of indebtedness issued or outstanding having the right to vote on any matters on which the Company's stockholders may vote ("Voting Debt").
(b) All the outstanding shares of capital stock of the Company have been duly authorized and validly issued and outstanding. are fully paid and non-assessable free of all preemptive or similar rights and were issued in accordance with the registration or qualification requirements of the Securities Act and any relevant state securities laws or pursuant to valid exemptions therefrom.
(c) Except for the Company Stock Options, which are listed on Section 2.3(b) of the Company Disclosure Schedule, and except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as 4.3 of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Schedule, there are no warrants, options, warrants or other subscriptions, calls, rights, agreementscommitments, arrangements convertible securities or commitments any other agreements of any character relating to or by which the issued Company or unissued any of its Subsidiaries is a party or is bound which, directly or indirectly, obligate the Company or any of its Subsidiaries to issue, deliver or sell or cause to be issued, delivered or sold any additional shares of Company Common Stock, Company Preferred Stock or any other capital stock stock, equity interest or other type of equity interests Voting Debt of the Company or any Subsidiary of the Company, any securities convertible into, or exercisable or exchangeable for, or evidencing the right to subscribe for any such shares, interests or Voting Debt, or any phantom shares, phantom equity interests or stock or equity appreciation rights, or obligating the Company or any of its Subsidiaries to grant, extend or enter into any such subscription, option, warrant, call or right (collectively, "Convertible Securities"). Neither the Company nor any Subsidiary thereof is subject to issue any obligation (contingent or sell otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreementstock.
(bd) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject to issuance Except as aforesaid, upon issuance on the terms and conditions specified disclosed in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual obligations Section 4.3(d) of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure LetterSchedule, there are no not, and immediately after the Effective Time, there will not be, any outstanding or authorized subscriptions, options, warrants, calls, rights, commitments or other agreements of any character to or by which the Company or any of its Subsidiaries is a party or is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer that, directly or the Merger. All outstanding Sharesindirectly, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock call for or relate to the sale, pledge, transfer or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned disposition 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.the
Appears in 2 contracts
Sources: Merger Agreement (Liberty Media Corp /De/), Merger Agreement (Video Services Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 250,000,000 shares of preferred stockCommon Stock, par value $0.001 per share share, and 40,000,000 shares of preferred stock (“Company Preferred Stock”), par value $0.10 per share. As 10,000,000 shares of December 7the Preferred Stock have been designated as Series A 6% Convertible Preferred Stock (the “Series A”) and 4,098,335 shares of preferred stock have been designated Series B Preferred Shares (the “Series B”). There are outstanding 26,562,239 shares of Common Stock, 2007350,250 shares of Series A and 1,923,077 shares of Series B, (i) 38,012,846 Shares are and the Company has no other shares of capital stock outstanding. All of the outstanding shares of capital stock of the Company have been duly authorized, validly issued and outstanding, all of which are validly issued, fully paid and nonassessable. As Except as set forth on Schedule 4(p): (1) there are no outstanding options, warrants, rights to subscribe for, calls or commitments of December 10any character whatsoever relating to, 2007or securities or rights convertible into or exercisable or exchangeable for, (i) 67,000 Shares are held in the treasury any shares of capital stock of the Company. As , or arrangements by which the Company is or may become bound to issue additional shares of December 8capital stock, 2007, (i) no Shares nor are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted any such issuances or arrangements contemplated other than pursuant to the Company eUniverse, Inc. 1999 Stock Plans Awards Plan and the ESPPeUniverse, Inc. 2002 Employee Stock Purchase Plan, (2) there are no agreements or arrangements under which the Company is obligated to register the sale of any of its securities under the Securities Act of 1933, as amended (the “Securities Act”) and (3) the Company has no obligations (contingent or otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interests therein or to pay any dividend or make any distribution in respect thereof. As The Company has furnished to the Purchaser true and correct copies of the Company’s certificate of incorporation, including any certificates of designation (the “Certificate of Incorporation”) as in effect on the date hereof, and the Company’s by-laws (the “By-laws”) as in effect on the date hereof. The Company is not in violation of this Agreement, no shares any provision of Company Preferred Stock are issued and outstandingits Certificate of Incorporation or By-laws. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”Certificate of Incorporation or on Schedule 4(p) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests none of the Company Note or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares Series B are subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary preemptive rights or any other person. Except as set forth in Section 4.03(b) similar rights of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result stockholders of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsCompany.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Secured Note Purchase Agreement (Marver James D), Secured Note Purchase Agreement (Euniverse Inc)
Capitalization. (a) The authorized capital stock of the Company consists of: (i) 20,000,000 shares of 100,000,000 Shares Company Common Stock, of which 4,373,307 shares are issued and 5,000,000 outstanding; (ii) 10,000,000 shares of preferred stock, $.001 par value $0.001 per share (“Company "PREFERRED STOCK"), of which: (A) 5,600,000 shares are designated as Series B Preferred Stock”Stock (the "SERIES B PREFERRED STOCK"). As of December 7, 2007, (i) 38,012,846 Shares are issued and outstanding, all of which are validly issuedissued and outstanding; (B) 850,000 shares are designated Series C Preferred Stock (the "SERIES C PREFERRED STOCK"), fully paid none of which are outstanding; (C) 400,000 shares are designated Series D Preferred Stock ("SERIES D PREFERRED STOCK"), of which 398,406 are issued and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries outstanding; and (iiD) 6,628,083 Shares 210,000 shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company designated Series E Preferred Stock ("SERIES E PREFERRED STOCK"), all of which are issued and outstanding. There are no other issued and outstanding shares of capital stock or voting securities of Company. All outstanding shares of Company's capital stock have been duly authorized, and are validly issued, fully paid, and nonassessable. No party has any preemptive (whether statutory or contractual) rights in any capital stock of Company. Except as set forth disclosed in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., SEC Documents (as rights agentdefined in Section 3.01(i)(i)), there are no outstanding convertible securities, subscriptions, options, warrants or other warrants, calls, rights, agreementscommitments, arrangements or commitments any other agreement to which Company or any Subsidiary of Company is a party, or by which Company or any Subsidiary of Company is bound that, directly or indirectly, obligate Company or any Subsidiary of Company to issue, deliver or sell or cause to be issued, delivered or sold any additional securities or any other capital stock of Company or any Subsidiary of Company, or any other securities convertible into, or exercisable or exchangeable for, or evidencing the right to subscribe for any such securities or any other capital stock of Company or any Subsidiary of Company. Neither Company nor any Subsidiary of Company is a party to any agreement or understanding regarding the voting or the registration under federal or state law of any character relating to shares of Company's capital stock or the issued or unissued equity voting interests of any Subsidiary of Company. All of the outstanding capital stock or other type of equity interests in each of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way Subsidiaries is owned by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth entities reflected in Section 4.03(b3.01(e) of the Disclosure Letter, there are no commitments free and clear of all liens, claims, charges, or agreements encumbrances. To the Knowledge of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding SharesCompany, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of each corporate Subsidiary have been validly issued and are fully paid and nonassessable. All equity interests of each other Subsidiary have been validly issued and granted are fully paid. The Merger Shares, when issued, sold and delivered in material compliance accordance with the terms of this Agreement for the consideration expressed herein: (i) all will be duly and validly issued, fully paid, and nonassessable; (ii) will not have been issued in violation of any preemptive rights; (iii) assuming the accuracy of the representations and warranties contained in Section 3.03 hereof, will be issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws or pursuant to a valid exemption therefrom; and (iv) will be free of restrictions on transfer other than restrictions on transfer under applicable state and federal securities Laws and other applicable Laws laws. As of (i) May 2, 2003, the Company Common Stock was, to the Knowledge of Company, Held of Record (as defined in Section 8.13) by 3,599 Persons; and (ii) all requirements set forth in applicable contracts.
(c) Each the date hereof, no more than 40 Persons hold outstanding share options to acquire shares of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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 whatsoeverCommon Stock.
Appears in 2 contracts
Sources: Merger Agreement (Carecentric Inc), Merger Agreement (Carecentric Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares shares of Company Common Stock, par value $.01 per share, and 5,000,000 2,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock”)share. As of December 7May 15, 2007, 2000
(i) 38,012,846 Shares are 33,035,784 shares of Company Common Stock were issued and outstanding, all of which have been duly authorized and validly issued and are validly issued, fully paid and nonassessable. As of December 10, 2007non-assessable, (iii) 67,000 no shares of preferred stock were issued or outstanding, (iii) no Shares are were held in the treasury of the Company. As of December 8, 2007, (iiv) no 7,329,324 Shares are were reserved for future issuance pursuant to, or were held by under, the Subsidiaries Company's Employee Plans (as defined in Section 4.11(a)) and (iiv) 6,628,083 150,000 Shares are were reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans Warrants. No change in such capitalization has occurred between May 15, 2000 and the ESPP. As date hereof other than any change associated with the exercise of the date of this Agreement, no shares of Company Preferred Stock are issued and outstandingvested Options or Warrants. Except as set forth in this Section 4.03, and 4.03 or Section 4.12 hereof or except for the Merger Option and the rights (the “Rights”as set forth in Schedule 4.03(a) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Schedule, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary of its subsidiaries or obligating the Company or any Subsidiary of its subsidiaries to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awardsits subsidiaries. All Shares 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 nonassessablenon-assessable. All outstanding shares of capital stock of the Company and its subsidiaries were issued in compliance with federal securities laws. There are no outstanding contractual obligations obligations, contingent or otherwise, of the Company or any Subsidiary of its subsidiaries to repurchase, redeem or otherwise acquire any Shares or any shares of capital stock of the Company or other type of equity interests the capital stock of any Subsidiary subsidiary or to provide funds to, to or make any investment (in the form of a loan, capital contribution or otherwise) in, in any Subsidiary such subsidiary or any other personentity other than guarantees of bank obligations of subsidiaries entered into in the ordinary course of business. Except as set forth in Section 4.03(b4.03(a) of the Company Disclosure LetterSchedule, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result all of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is the Company's subsidiaries are duly authorized, validly issued, fully paid and nonassessable, non-assessable and each such share is are owned by the Company or another Subsidiary subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on in the Company’s or any Subsidiary’s 's voting rights, charges and or other encumbrances of any nature whatsoever.
(b) Except as set forth in Schedule 4.03(b) of the Company Disclosure Schedule, there are no 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 the capital stock of the Company or any of the subsidiaries. None of the Company or its subsidiaries is required to redeem, repurchase or otherwise acquire shares of capital stock of the Company or any of its subsidiaries, respectively, as a result of the Transactions.
Appears in 2 contracts
Sources: Merger Agreement (Schein Pharmaceutical Inc), Merger Agreement (Watson Pharmaceuticals Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 200,000,000 shares of common stock, par value $0.0001 per share (“Common Stock”), and 5,000,000 10,000,000 shares of preferred stock, par value $0.001 0.0001 per share (“Company Preferred Stock”). As At the close of December business on February 7, 20072014 (the “Capitalization Date”), (ia) 38,012,846 Shares are 87,315,699 shares of Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, ; (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (ib) no Shares are shares of Preferred Stock were issued and outstanding; (c) no shares of Common Stock were held by the Subsidiaries Company in its treasury; (d) an aggregate of 10,669,286 shares of Common Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans, of which 10,666,286 shares of Common Stock were underlying outstanding and unexercised Company Options and 3,000 shares of Common Stock were underlying unvested Restricted Stock Units; and (iie) 6,628,083 Shares are an aggregate of 4,285,024 shares of Common Stock were reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstandingWarrants. Except as set forth in this Section 4.03the preceding sentence, and except for at the Merger Option and close of business on the rights (the “Rights”) issued pursuant to the Preferred Stock Rights AgreementCapitalization Date, dated as no shares of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type voting securities of or equity interests of in the Company were issued, reserved for issuance or any Subsidiary or obligating outstanding. From and after the Capitalization Date until and including the date hereof, the Company or any Subsidiary to issue or sell has not issued any shares of its capital stock, has not granted any options, restricted stock, restricted stock units, 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 ofand has not split, combined or other type reclassified any of equity interests in, the Company or any Subsidiaryits shares of capital stock. Section 4.03 All of the Disclosure Letter sets forth the following information with respect to each Company Stock Option outstanding Shares are, and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of all Shares subject that may be issued prior to the award; (iv) the exercise or purchase price of the awardEffective Time will be, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vestingwhen issued, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenonassessable and not subject to preemptive rights. There are no 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 Common Stock may vote (the “Voting Company Debt”). Section 4.02 of the Disclosure Letter contains a true, correct and complete list, as of the date hereof, of (i) the name of each holder of Company Options and Restricted Stock Units, the Company Stock Plan under which such Company Option or Restricted Stock Unit was granted, the number of outstanding Company Options and Restricted Stock Units held by such holder, the grant date of each such Company Option and Restricted Stock Unit, the number of Shares such holder is entitled to receive upon the exercise of each Company Option and the corresponding exercise price, the expiration date of each Company Option and the vesting schedule of each such Company Option and Restricted Stock Unit, and (ii) the name of each holder of Company Warrants, the number of Shares such holder is entitled to receive upon the exercise of each Company Warrant and the corresponding exercise price and the expiration date of each Company Warrant. The Company has provided to Parent prior to the date hereof true, accurate and complete copies of each Company Warrant. Except for the Company Options, the Restricted Stock Units and the Company Warrants and for changes since the Capitalization Date resulting from (x) the exercise of Company Options outstanding on such date or issued after such date as and to the extent permitted by Section 6.01 or the exercise of Company Warrants outstanding on such date, and (y) the vesting and settlement of the Restricted Stock Units outstanding on such date or issued after such date as and to the extent permitted by Section 6.01, there are no outstanding (A) shares of capital stock, voting securities, other ownership interests or other 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, 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, or (D) restricted shares, stock appreciation rights, performance shares or units, contingent value rights, “phantom” stock or similar securities or rights issued by the Company that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital stock or voting securities of, or other ownership interests in, the Company (the items in clauses (A), (B), (C) and (D), together with the capital stock of the Company, being referred to collectively as “Company Securities”). There are no outstanding contractual obligations of the Company or any Subsidiary to repurchasepurchase, redeem or otherwise acquire any Shares or any capital stock Company Securities. There are no voting trusts or other type of equity interests of any Subsidiary agreements or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character understandings to which the Company is bound obligating a party with respect to the Company to accelerate the vesting voting of any Company Stock Option as a result capital stock of the Offer or the MergerCompany. All outstanding Shares, all outstanding securities of the Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been offered and issued and granted in compliance in all material compliance respects with (i) all applicable securities Laws Laws, including the Securities Act of 1933, as amended (the “Securities Act”) and other applicable Laws and (ii) all requirements set forth in applicable contracts“blue sky” Laws.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Merger Agreement (Cadence Pharmaceuticals Inc), Merger Agreement (Mallinckrodt PLC)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 20,000,000 shares of preferred stockCompany Common Stock. At the close of business on November 12, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 20071997, (i) 38,012,846 Shares are 7,930,107 shares of Company Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (iii) no Shares are shares of Company Common Stock were held by the Subsidiaries Company in its treasury, (iii) except as set forth on Schedule 4.03, 750,070 shares of Company Common Stock were reserved for issuance upon exercise of outstanding Options (as defined in Section 7.04) and (iiiv) 6,628,083 Shares are 1,090,407 shares of Company Common Stock were reserved for future issuance pursuant to upon the exercise of certain outstanding Company Stock warrants. Except as set forth above and except for Shares issued upon the exercise of Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As or warrants, as of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests voting securities of the Company were issued, reserved for issuance or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any outstanding. All outstanding shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option are, and Company Stock Award outstanding as of December 8all shares which may be issued will be, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the awardwhen issued, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenonassessable and not subject to preemptive rights. There are no 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 above, and except for obligations to grant options, subject to the approval of the Board of Directors of the Company, as of the date of this Agreement, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its subsidiaries is a party or by which any of them is bound 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 or other voting securities of the Company or of any of its subsidiaries or obligating the Company or any of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. As of the date of this Agreement, there are not any outstanding contractual obligations (i) of the Company or any Subsidiary of its subsidiaries to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock of the Company or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of the Company to vote or to dispose of any shares of the capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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 whatsoeverof its subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (WPG Corporate Development Associates v Lp), Merger Agreement (Atc Group Services Inc /De/)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 30,000,000 Shares, and 5,000,000 shares 10,000,000 of preferred stock, no par value $0.001 per share (“Company the "Preferred Stock”"). As of December 7, 2007the date hereof, (i) 38,012,846 12,271,928 Shares are issued and outstanding, all (ii) no shares of which Preferred Stock are validly issued, fully paid issued and nonassessable. As of December 10, 2007outstanding), (iiii) 67,000 no Shares are issued and held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (iiiv) 6,628,083 a total of 3,783,451 Shares are reserved for future issuance pursuant to the 1984 Plan, the Directors Plan, the 1994 Plan, the PTSOP, the ESPP and the Warrant. Schedule 3.2(a)(i) of the Company Disclosure Schedules sets forth the number of shares of Common Stock reserved for future issuance or purchase pursuant to each of the 1984 Plan, the Directors Plan, the 1994 Plan, the PTSOP, the ESPP and the Warrant. Schedule 3.2(a)(ii) of the Company Disclosure Schedules sets forth the number of shares subject to each outstanding Company option, and the exercise price thereof. All the outstanding shares of the Company's capital stock are, and all shares of Common Stock Options and Company Stock Awards granted which may be issued pursuant to the Company Stock Plans exercise of outstanding options will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and the ESPPnon-assessable. As There are no bonds, debentures, notes or other indebtedness having general voting rights (or convertible into securities having such rights) ("Voting Debt") of the date Company or any of this Agreement, no shares of Company Preferred Stock are its Subsidiaries issued and outstanding. Except as disclosed in this Section 3.2 or as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”Schedule 3.2(a)(ii) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor ServicesDisclosure Schedules, L.L.C., as rights agent, (i) there are no shares of capital stock of the Company authorized, issued or outstanding, (ii) there are no existing options, warrants warrants, calls, pre-emptive rights, subscriptions or other rights, agreements, arrangements or commitments of any character character, relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary of its Subsidiaries, obligating the Company or any of its Subsidiaries to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or equity interests, or obligating the Company or any Subsidiary of its Subsidiaries to issue grant, extend or sell enter into any shares of capital stock ofsuch option, warrant, call, subscription or other type of equity interests inright, the Company agreement, arrangement or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option commitment, and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There there are no outstanding contractual obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares Shares, or the capital stock of the Company or any capital stock Subsidiary or other type affiliate of equity interests of any Subsidiary the Company or to provide funds to, or to make any investment (in the form of a loan, capital contribution or otherwise) in, in any Subsidiary or any other personentity. The Company has no obligation to grant any options in the future other than pursuant to the Company Stock Plans.
(b) Except as set forth in Section 4.03(bSchedule 3.2(b) of the Company Disclosure LetterSchedules, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result all of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock of each of the Subsidiaries are beneficially owned by Company, directly or indirectly, and all such shares have been validly issued and are fully paid and nonassessable and are owned by either the Company or one of its Subsidiaries free and clear of all liens, charges, security interests, options, claims, mortgages, pledges, transfer restrictions or other type encumbrances and restrictions of equity interests any nature whatsoever ("Encumbrances"), except for those directors' qualifying shares of each Subsidiary have been issued capital stock of such Subsidiaries not material in amount and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractssubject to repurchase or cancellation arrangements.
(c) Each There are no 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 the capital stock of the Company or any of the Subsidiaries.
(d) Other than as set forth on Schedule 3.2(d) of the Company Disclosure Schedules or the Company's Financial Statements (as hereinafter defined), there is no outstanding share Indebtedness (as hereinafter defined) of the Company or any of its Subsidiaries. Except as identified in Schedule 3.2(d) of the Company Disclosure Schedules, no Indebtedness of the Company or its Subsidiaries contains any restriction upon (i) the prepayment of such Indebtedness, (ii) the incurrence of Indebtedness (including the Debt Financing) by the Company or its Subsidiaries, respectively, (iii) the ability of the Company or its Subsidiaries to grant any liens on their properties or assets, or (iv) the ability of the Company to enter into this Agreement or to consummate the Merger. For purposes of this Agreement, "Indebtedness" shall include (v) all indebtedness for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices), (w) any other indebtedness which is evidenced by a note, bond, debenture or similar instrument, (x) all obligations under financing leases, (y) all liabilities secured by any lien on any property and (z) all guarantee obligations.
(e) Except as set forth in Schedule 3.2(e) of the Company Disclosure Schedules, since January 1, 1995, the Company has not entered into any material agreement involving the acquisition, sale or disposition of any class of capital stock or other type assets of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free any of its Subsidiaries, by merger or otherwise; and clear except as disclosed on Schedule 3.2(e) of all security intereststhe Company Disclosure Schedules, liens, claims, pledges, options, rights to the best of first refusal, agreements, limitations on knowledge of the Company’s , none of the Company or any Subsidiary’s voting rightsof its Subsidiaries is in breach of, charges and other encumbrances or subject to a claim of default under, any nature whatsoeversuch agreements listed on such Schedule.
Appears in 2 contracts
Sources: Acquisition Agreement (Intervoice Inc), Acquisition Agreement (Brite Voice Systems Inc)
Capitalization. (a) The authorized capital stock of the Company consists of (A) 100,000,000 Shares shares of common stock, no par value, of which, as of the date hereof, 6,473,140 shares are issued and 5,000,000 outstanding and (B) 25,000,000 shares of preferred stock, no par value $0.001 per share (“Company Preferred Stock”). As value, of December 7which, 2007as of the date hereof, (i) 38,012,846 Shares none are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreementhereof, there are no treasury shares of the Company Preferred and only options (the "Company Options") to purchase in the aggregate 350,400 Company Shares are outstanding all of which were granted under either the Company's 1997 Stock are issued and outstandingOption Plan or the Company's 1999 Stock Option Plan for Non-Employee Directors (the "Company Plans"). Except as set forth in this Section 4.03All the outstanding shares of the Company's capital stock are, and except for the Merger Option and the rights (the “Rights”) all shares which may be issued pursuant to the Preferred Stock Rights Agreement, dated as exercise of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between outstanding Company Options or pursuant to the Company and Mellon Investor ServicesPlans will be, L.L.C.when issued in accordance with the respective terms thereof, as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenon-assessable. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) ("Voting Debt") of the Company or any of its subsidiaries issued and outstanding. Except as set forth above and except for the transactions provided for in this Agreement, as of the date hereof, (i) there are no shares of capital stock of the Company authorized, issued or outstanding and (ii) there are no existing options, warrants, calls, pre-emptive rights, subscriptions or other rights, convertible securities, agreements, arrangements or commitments of any character, relating to the issued or unissued capital stock of the Company or any of its subsidiaries, obligating the Company or any of its subsidiaries to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any of its subsidiaries or securities convertible into or exchangeable for such shares or equity interests or obligations of the Company or any of its subsidiaries to grant, extend or enter into any such option, warrant, call, subscription or other right, convertible security, agreement, arrangement or commitment. There are no outstanding contractual obligations of the Company or any Subsidiary of its subsidiaries to repurchase, redeem or otherwise acquire any Company Shares or any other capital stock of the Company or other type any of equity interests its subsidiaries or affiliates of any Subsidiary the Company or to provide funds to, or to make any investment (in the form of a loan, capital contribution or otherwise) in, in any Subsidiary of its subsidiaries or any other personentity nor has the Company or any of its subsidiaries granted or agreed to grant to any person any stock appreciation rights or similar equity-based rights. Except as set forth in Section 4.03(bpermitted by this Agreement, following the Merger, neither the Company nor any of its subsidiaries will have any obligation to issue, transfer or sell any shares of its capital stock pursuant to any employee benefit plan or otherwise.
(b) All of the Disclosure Letteroutstanding shares of capital stock of each of the subsidiaries are owned beneficially by the Company, there directly or indirectly, and all such shares have been validly issued and are fully paid and nonassessable and are owned by either the Company or one of its subsidiaries free and clear of all Liens.
(c) There are no commitments voting trusts or other agreements of any character or understandings to which the Company or any of its subsidiaries is bound obligating a party with respect to the voting of the capital stock of the Company or any of its subsidiaries. None of the Company or its subsidiaries is required to accelerate redeem, repurchase or otherwise acquire shares of capital stock of the vesting Company, or any of any Company Stock Option its subsidiaries, respectively, as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractstransactions contemplated by this Agreement.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Merger Agreement (Union Pacific Corp)
Capitalization. (a) The As of the date hereof, and after giving effect to the filing of the Certificate of Designation, the authorized capital stock of the Company consists of 100,000,000 Shares 50,000,000 shares of Common Stock, par value $0.01 per share, and 5,000,000 1,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company share, of which 500,000 shares are designated Series A Preferred Stock and 120,000 shares are designated Series B Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date hereof, and after giving effect to the filing of this Agreementthe Certificate of Designation, 27,865,532 issued shares of Common Stock, of which 991,772 shares are held by the Company as treasury shares and 26,873,780 are outstanding, no shares of Company Series A Preferred Stock outstanding and no shares of Series B Preferred Stock outstanding, 3,598,942 shares of Common Stock are reserved for issuance under the Company’s 2005 Stock Award and Incentive Plan (the “Benefit Plan”), and 1,503,185 shares of Common Stock are available for grant under the Benefit Plan. As of the date hereof, and after giving effect to the filing of the Certificate of Designation, the Company has no other shares of capital stock authorized, issued and or outstanding. Except A capitalization table presenting the capitalization of the Company after giving effect to the filing of the Certificate of Designation and the Closing is set forth on Schedule 5.1(a) hereto.
(b) As of the date hereof, except as set forth in this Section 4.03, the SEC Reports or on Schedule 5.1(b) and except for as may be granted or required by this Agreement or the Merger Option and the rights other Transaction Documents, (the “Rights”i) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no outstanding options, warrants or other rightswarrants, agreementsscrip, arrangements rights to subscribe to, calls or commitments of any character whatsoever relating to the issued to, or unissued capital stock securities or other type of equity interests of the Company rights convertible into or any Subsidiary exercisable or obligating the Company or any Subsidiary to issue or sell exchangeable for, any shares of capital stock ofof the Company, or other type of equity interests in, arrangements by which the Company is or may become bound to issue additional shares of capital stock, nor are any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state such issuances or country in which the recipient residesarrangements contemplated; (ii) the particular plan pursuant to there are no agreements or arrangements under which the award was grantedCompany is or may become obligated to register the sale of any of its securities under the Securities Act; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available no obligation (contingent or otherwise) to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchasepurchase, redeem or otherwise acquire any Shares of its equity securities or any capital stock or other type of equity interests of any Subsidiary therein or to provide funds to, pay any dividend or make any investment distribution in respect thereof; and (in the form of a loan, capital contribution or otherwiseiv) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of has not reserved any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock for issuance pursuant to any stock option plan or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractssimilar arrangement.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Series B Preferred Stock Purchase Agreement (Bain Capital Venture Integral Investors, LLC), Series B Preferred Stock Purchase Agreement (Edgar Online Inc)
Capitalization. (a) The entire authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 2,500,000 shares of preferred stockCommon Stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares which 1,499,912.94290 are issued and outstanding, all 3,712.01120 of which are validly issued, fully paid reserved for issuance under the Company’s Equity Incentive Plan and nonassessable. As 3,487.48880 of December 10, 2007, (i) 67,000 Shares which are held in the treasury treasury. The record and beneficial owners of all of the Company. As outstanding shares of December 8, 2007, (i) no Shares are Common Stock and the number of shares held by the Subsidiaries and (ii) 6,628,083 Shares each such holder are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”Schedule 5.4(a), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies All outstanding shares of all Company Common Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenon-assessable, were issued in compliance with applicable securities Laws or exemptions therefrom and, except as set forth in Schedule 5.4(b), are not subject to and were not 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 certificate of incorporation or by-laws of the Company or any Contract to which the Company is a party or otherwise bound.
(c) Except as set forth above and in Schedule 5.4(c), there are not any 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 or by which any of them is bound 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 or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any of its Subsidiaries. Except for the Equity Incentive Plan, since September 7, 2012, the Company or any of its Subsidiaries have not adopted, sponsored or maintained any stock option plan or any other plan or Contract providing for equity or equity-based compensation to any Person. Each Restricted Share was granted under the Interline Brands, Inc. Amended and Restated 2012 Stock Options Plan and each Option has an exercise price that equals or exceeds the fair market value of a share of Common Stock as of the date of grant of such Option (and as of any later modification thereof within the meaning of Section 409A of the Code) within the meaning of Section 422 of the Code. Schedule 5.4(c) sets forth (A) with respect to each Option, (i) the holder’s employee identification number, (ii) the number of shares of Common Stock subject to such Option, (iii) the exercise price per share of such Option, and (B) with respect to each Restricted Share, (i) the holder’s employee identification number, (ii) to the Knowledge of the Company, whether the holder of the Restricted Share made an election under Section 83(b) of the Code with respect to such Restricted Share and (iii) the number of shares of Common Stock subject to such Restricted Share.
(d) There are no not any outstanding contractual obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock of the Company or other type any of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsits Subsidiaries.
(ce) Each outstanding share None of capital stock the Company nor any of its Subsidiaries is a party to and, to the Knowledge of the Company, there will not be, whether or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by not the Company or another Subsidiary free and clear any of all security interestsits Subsidiaries is a party thereto, liensany Contract, claims, pledges, options, rights right of first refusal, agreementsright of first offer, limitations on proxy, voting agreement, voting trust, registration rights agreement or stockholders agreement with respect to the Company’s purchase, sale or voting of any shares of capital stock of the Company or any Subsidiary’s voting rightsof its Subsidiaries or any securities convertible into or exchangeable or exercisable for any shares of capital stock of the Company or any of its Subsidiaries, charges other than this Agreement and other encumbrances of any nature whatsoeverexcept as set forth on Schedule 5.4(e).
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Interline Brands, Inc./De)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 30,000,000 shares of Company Common Stock and 5,000,000 10,000,000 shares of preferred stock, par value $0.001 1.00 per share (“"Company Preferred Stock”"). As At the close of December 7business on October 1, 20071999, (i) 38,012,846 Shares are 9,218,314 shares of Company Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are 1,076,484 shares of Company Common Stock were reserved for future issuance pursuant to upon exercise of outstanding Company Stock Options (as defined below) as set forth in Section 3.03 of the Disclosure Schedule and (iii) no shares of Company Preferred Stock were issued and outstanding. Except as set forth above, and except for shares issued upon the exercise of Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As Options, as of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests voting securities of the Company were issued, reserved for issuance or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any outstanding. All outstanding shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option are, and Company Stock Award outstanding as of December 8all shares which may be issued will be, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the awardwhen issued, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenonassessable and not subject to preemptive rights. There Except as set forth in Section 3.03 of the Disclosure Schedule, there are no 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 above, there are not any securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of the Subsidiaries is a party or by which any of them is bound obligating the Company or any of the Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of the Company or of any of the Subsidiaries or obligating the Company or any of the Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. Except as set forth in Section 3.03 of the Disclosure Schedule, there are not any outstanding contractual obligations (i) of the Company or any Subsidiary of the Subsidiaries to repurchase, redeem or otherwise acquire any Shares or any shares of capital stock of the Company or other type (ii) of equity interests the Company to vote or to dispose of any Subsidiary or to provide funds to, or make shares of the capital stock of any investment (in of the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other personSubsidiaries. Except as set forth in Section 4.03(b) 3.03 of the Disclosure LetterSchedule, there are no commitments or agreements restrictions on the right of any character to which the Company is bound obligating the Company to accelerate the vesting vote or dispose of any Company Stock Option as a result shares of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsthe Subsidiaries.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Merger Agreement (Railamerica Inc /De), Merger Agreement (Railtex Inc)
Capitalization. (a) The authorized capital stock Capital Stock of ▇▇▇▇▇▇▇ consists of 1,600,000 shares of ▇▇▇▇▇▇▇ Common Stock, of which 1,111,771 shares are issued and outstanding as of the Company consists date of 100,000,000 Shares this Agreement, and 5,000,000 10,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock”). As share, of December 7, 2007, (i) 38,012,846 Shares which no shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As as of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate authorized Capital Stock of Nine consists of 6,000,000 shares of Nine Common Stock, of which 1,069,966 shares are issued and complete copies outstanding as of all Company the date of this Agreement, and 100,000 shares of preferred stock, par value $0.01 per share, of which no shares are issued and outstanding as of the date of this Agreement.
(c) The issued and outstanding shares of such Combining Company’s Capital Stock Plans pursuant to which are, as of the Company has granted date of this Agreement, owned of record by the Company Stock Options groups of Persons and Company Stock Awards that are currently outstanding and in the form amounts set forth in Section 4.3 of all award agreements evidencing such awardsthe Disclosure Letter. All Shares subject to issuance as aforesaidof the outstanding shares of such Combining Company’s Capital Stock, upon issuance on and all of the terms and conditions specified in outstanding shares of the instruments pursuant to which they Capital Stock of each Subsidiary of such Combining Company are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual obligations nonassessable and, except as set forth on Section 4.3 of the Company or any Subsidiary to repurchaseDisclosure Letter, redeem or otherwise acquire any Shares or any capital stock or other type were issued free of equity interests the preemptive rights of any Person and in compliance with applicable corporate and securities Laws. Except as set forth on Section 4.3 of the Disclosure Letter, all of the outstanding Capital Stock of each Subsidiary of such Combining Company is owned legally and beneficially, directly or to provide funds toindirectly, or make any investment (by such Combining Company as set forth in Section 4.3 of the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other personDisclosure Letter. Except as set forth in Section 4.03(b) 4.3 of the Disclosure Letter, as of the date hereof, there are no outstanding subscriptions, options, calls, contracts, commitments, understandings, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement obligating such Combining Company or any Subsidiary of such Combining Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of the Capital Stock of such Combining Company or any Subsidiary of such Combining Company or obligating such Combining Company or any Subsidiary of such Combining Company to grant, extend or enter into any such agreement or commitment. Other than as set forth in Section 4.3 of the Disclosure Letter, there are no commitments outstanding contractual obligations, commitments, understandings or agreements arrangements of such Combining Company or any character to which the Company is bound obligating the Subsidiary of such Combining Company to accelerate the vesting purchase, redeem or otherwise acquire or make any payment in respect of or register under federal or state securities laws any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type Capital Stock of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Combining Company or another any Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the such Combining Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoever.
Appears in 2 contracts
Sources: Combination Agreement (Nine Energy Service, Inc.), Combination Agreement (Nine Energy Service, Inc.)
Capitalization. (a) The authorized capital stock of --------------- the Company consists of 100,000,000 Shares and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are 300,000,000 shares of Company Common Stock of which, as of April 24, 1999, 116,519,333 shares were issued and outstanding, all of which are duly authorized, validly issued, fully paid and nonassessable. As of December 10nonassessable and not subject to preemptive rights, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares 5,000,000 shares of preferred stock, none of which are issued and outstanding. As of April 24, 1999, there were 21,815,997 shares of Company Common Stock reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this AgreementOption Plans.
(b) Except as set forth in Section 5.03(a), no shares of Company Preferred Common Stock are issued and outstanding. Except as set forth in this Section 4.03reserved for issuance, and and, except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Company Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”)Options, as amended on March 16, 2003, between listed in Section 5.03(b) of the Company and Mellon Investor Services, L.L.C., as rights agentCompany's Disclosure Letter, there are no options, warrants warrants, rights, convertible or other exchangeable securities, "phantom" stock rights, stock appreciation rights, stock-based performance units, contracts, agreements, commitments or arrangements obligating the Company (i) to offer, sell, issue or commitments grant any shares of, or any options, warrants or rights of any character relating kind to the issued acquire any shares of, or unissued any securities that are convertible into or exchangeable for any shares of, capital stock of the Company, (ii) to redeem, purchase or other type acquire, or offer to purchase or acquire, any outstanding shares of, or any outstanding options, warrants or rights of equity interests any kind to acquire any shares of, or any outstanding securities that are convertible into or exchangeable for any shares of, capital stock of the Company or (iii) to grant any Lien on any shares of capital stock of the Company.
(c) Except as set forth in Section 5.03(c) of the Company's Disclosure Letter, (i) the issued and outstanding shares of capital stock of, or other equity interests in, each of the Subsidiaries of the Company that are owned by the Company or any of its Subsidiaries have been duly authorized and are validly issued, and, with respect to capital stock, are fully paid and nonassessable, and were not issued in violation of any preemptive or similar rights of any past or present equity holder of such Subsidiary; (ii) all such issued and outstanding shares, or other equity interests, that are indicated as owned by the Company or one of its Subsidiaries in Section 5.03(c) of the Company's Disclosure Letter are owned (A) beneficially as set forth therein and (B) free and clear of all Liens except as described therein; (iii) no shares of capital stock of, or other equity interests in, any Subsidiary of the Company are reserved for issuance, and there are no options, warrants, rights, convertible or exchangeable securities, "phantom" stock rights, stock appreciation rights, stock-based performance units, contracts, agreements, commitments or arrangements obligating the Company or any Subsidiary of its Subsidiaries (A) to issue offer, sell, issue, grant, pledge, dispose of or sell encumber any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, any of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations Subsidiaries of the Company or (B) to redeem, purchase or acquire, or offer to purchase or acquire, any Subsidiary outstanding shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to repurchase, redeem or otherwise acquire any Shares shares of capital stock of, other equity interests in, or any outstanding securities that are convertible into or exchangeable for, any shares of capital stock of, or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary of the Subsidiaries of the Company or (C) to grant any Lien on any outstanding shares of capital stock of, or other person. equity interests in, any of the Subsidiaries of the Company.
(d) Except as set forth in Section 4.03(b5.03(d) of the Company's Disclosure Letter and the Company Option Plans listed in Section 5.03(b) of the Company's Disclosure Letter, there are no voting trusts, proxies or other agreements, commitments or agreements understandings of any character to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound obligating with respect to the Company to accelerate the vesting voting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock of the Company or other type any of equity interests its Subsidiaries or with respect to the future registration of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsthe offering, sale or delivery of any shares of capital stock of the Company or any of its Subsidiaries under the Securities Act.
(ce) Each outstanding share of capital stock There are not any bonds, debentures, notes or other type indebtedness of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company having the right to vote (or another Subsidiary free and clear convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders 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.Company may vote ("Voting Company Debt"). -------------------
Appears in 2 contracts
Sources: Merger Agreement (Gec Acquisition Corp), Merger Agreement (Gec Acquisition Corp)
Capitalization. As of the date hereof and immediately prior to the Closing, (ai) The the authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 28,000,000 shares of preferred stock, par value $0.001 per share (“Company which includes 3,000,000 shares of Preferred Stock”), and 25,000,000 shares of Common Stock; (ii) no shares of preferred stock (including Preferred Stock) of the Company are outstanding; (iii) 600,000 shares of Common Stock are reserved for issuance upon the exercise of options issued pursuant to the Company's 1996 Stock Option Plan (the "Stock Option Plan") and 3,744,225 shares of Common Stock are reserved for issuance upon the exercise of warrants and options; (iv) 833,333 shares of Common Stock are reserved for issuance upon the conversion of the Preferred Stock and 833,333 shares of Common Stock are reserved for issuance upon the exercise of the Warrants; (v) 8,708,846 shares of Common Stock are outstanding; and (vi) 55,672 shares of Common Stock are held in treasury. As All of December 7, 2007, (i) 38,012,846 Shares are the outstanding shares of Common Stock have been duly authorized and validly issued and outstanding, all of which are validly issued, fully paid and nonassessablenon-assessable and were issued in compliance with all applicable Federal and state laws concerning the issuance of securities. As of December 10The rights, 2007preferences, (i) 67,000 Shares are held in the treasury privileges and restrictions of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Preferred Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock Warrants are issued and outstanding. Except as set forth in this Section 4.03the Certificate of Amendment and Warrant Certificate, respectively. Except for the Stock Option Plan and the transactions contemplated hereby and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentset forth in Schedule 3.2 hereto, there are no outstanding options, warrants warrants, rights (including registration, conversion or preemptive rights and rights of first refusal), proxy or shareholders agreements or other rights, agreements, agreements or arrangements of the Company or commitments of any character Subsidiary granted to or with any Person to purchase or acquire or otherwise relating to the issued or unissued capital stock or other type of equity interests any securities of the Company or any Subsidiary or obligating any securities convertible or exchangeable into such securities. Without limiting the generality of the foregoing and except as provided in the Registration Rights Agreement, neither the Company or nor any Subsidiary to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject or agreed 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 no outstanding contractual obligations of the Company or grant any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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 registration rights, charges and other encumbrances of including piggyback rights, to any nature whatsoeverPerson.
Appears in 2 contracts
Sources: Convertible Preferred Stock and Warrant Purchase Agreement (Alcohol Sensors International LTD), Convertible Preferred Stock and Warrant Purchase Agreement (American International Group Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 25,000,000 shares of preferred stockCommon Stock. At the close of business on March 18, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 20071998, (i) 38,012,846 Shares are 12,214,473 shares of Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (iii) no Shares are shares of Common Stock were held by the Subsidiaries Company in its treasury and (iiiii) 6,628,083 Shares are 2,722,548 shares of Common Stock were reserved for future issuance pursuant upon exercise of options to outstanding purchase shares of Common Stock ("Company Stock Options and Company Stock Awards granted Options") issued pursuant to the Company Stock Plans Company's stock option plans and the ESPPoutstanding warrants to purchase common stock. As Except as set forth above, as of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests voting securities of the Company were issued, reserved for issuance or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any outstanding. All outstanding shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenonassessable and not subject to preemptive rights. There are no 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 above, as of the date of this Agreement, there are not any securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its subsidiaries is a party or by which any of them is bound 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 or other voting securities of the Company or of any of its subsidiaries or obligating the Company or any of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. There is not any outstanding contractual obligations of the Company or any Subsidiary of its subsidiaries (i) to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock of the Company or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share to vote or to dispose of any shares of the capital stock or other type of equity interests any of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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's subsidiaries.
Appears in 2 contracts
Sources: Tender Agreement (Motorola Inc), Tender Agreement (Motorola Inc)
Capitalization. (a) The authorized capital stock of the -------------- Company consists of 100,000,000 Shares (i) 150,000,000 shares of common stock, $0.01 par value per share (the "Common Stock") and 5,000,000 (ii) 10,000,000 shares of preferred stock, par ------------ value $0.001 0.01 per share (“Company the "Preferred Stock”)") of which 408,000 shares have been --------------- designated as Series A Junior Participating Preferred Stock. As of December 7, 2007the date hereof, (i) 38,012,846 42,648,084 Shares are issued and outstanding, all (ii) no shares of which Preferred Stock are validly issued, fully paid issued and nonassessable. As of December 10, 2007outstanding, (iiii) 67,000 1,922,220 Shares are issued and held in the treasury of the Company, and (iv) a total of 7,834,850 Shares are reserved for issuance pursuant to the Option Plan. As All of December 8the outstanding shares of the Company's capital stock are, 2007and all Shares which may be issued pursuant to the exercise of outstanding Options will be, duly authorized, validly issued, fully paid and non-assessable. There is no indebtedness having general voting rights (or convertible into securities having such rights) ("Voting Debt") of the Company or any Company Subsidiary issued and outstanding. ----------- Except as disclosed in this Section 3.3 or as set forth in Section 3.3(a) of the Company Disclosure Schedule, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no existing options, warrants warrants, calls, pre-emptive rights, subscriptions or other rights, agreements, arrangements or commitments of any character kind relating to the issued or unissued capital stock or other type of equity interests of the Company or any Company Subsidiary obligating the Company or any Company Subsidiary to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any Company Subsidiary or securities convertible into or exchangeable for such shares or equity interests, or obligating the Company or any Company Subsidiary to issue grant, extend or sell enter into any shares of capital stock ofsuch option, warrant, call, subscription or other type of equity interests inright, the Company agreement, arrangement or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option commitment, and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There there are no outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any Shares or any the capital stock of the Company or other type any Company Subsidiary or any affiliate of equity interests of any Subsidiary the Company or to provide funds to, or to make any investment (in the form of a loan, capital contribution or otherwise) in, in any Company Subsidiary or any other personentity. Except as set forth in Section 4.03(b3.3(a) of the Company Disclosure LetterSchedule sets forth, there are no commitments or agreements with respect to each existing option to purchase capital stock of any character the Company, the number of shares issuable, and the purchase price payable therefor upon the exercise of each such option.
(b) All of such options have been granted to which employees of the Company is bound obligating in the ordinary course of business consistent with past practice. All options granted under the Option Plan have been granted pursuant to option award agreements in the substantially the form attached as an exhibit to Section 3.3(b) of the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsDisclosure Schedule.
(c) Each outstanding share of capital stock There are no voting trusts or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by agreements or understandings to which the Company or another any Company Subsidiary free and clear is a party with respect to the voting of all security interests, liens, claims, pledges, options, rights the capital stock of first refusal, agreements, limitations on the Company’s Company or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoeverthe Company Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Lee Sara Corp), Merger Agreement (Lee Sara Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 200,000,000 shares of preferred common stock, par value $0.001 0.20 per share (“Company Preferred Stock”)share. As of December 7, 2007the date hereof, (i) 38,012,846 106,757,046 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (iii) 67,000 no Shares are issued and held in the treasury of the Company. As of December 8, 2007, (iiii) no Shares are held by the Subsidiaries and (ii) 6,628,083 a total of 3,245,888 Shares are reserved for future issuance pursuant upon the exercise of outstanding Options, of which a total of 2,205,135 Shares are subject to outstanding Company Stock Options that are vested and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As exercisable as of the date hereof and (iv) a total of this Agreement, no 4,683,110 Shares are available for future grant under the Option Plans. All of the issued and outstanding shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03the Company’s common stock are, and except for the Merger Option and the rights (the “Rights”) all shares that may be issued pursuant to the Preferred Stock Rights Agreementexercise of outstanding Options will be, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenon-assessable. There are is no outstanding contractual obligations indebtedness having general voting rights on matters on which shareholders of the Company may vote (or convertible into securities having such rights) (“Voting Debt”) of the Company or any Company Subsidiary issued and outstanding. Except as disclosed in this Section 3.3 or as set forth in Section 3.3(a) of the Company Disclosure Schedule, and except for the Rights, (i) there are no existing options, warrants, calls, pre-emptive rights, subscriptions or other rights, restricted stock awards, agreements, arrangements, understandings or commitments of any kind relating to the issued or unissued capital stock of, or other equity interests in, the Company or any Company Subsidiary obligating the Company or any Company Subsidiary to issue, transfer, register or sell or cause to be issued, transferred, registered or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any Company Subsidiary or securities convertible into or exchangeable for such shares or equity interests or other securities, or obligating the Company or any Company Subsidiary to grant, extend or enter into any such option, warrant, call, subscription or other right, restricted stock award, agreement, arrangement, understanding or commitment, and (ii) there are no outstanding agreements, arrangements, understandings or commitments of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any Shares or the capital stock of the Company or any capital stock or other type of equity interests of in any Company Subsidiary or any Person or to provide funds to, or to make any investment (in the form of a loan, capital contribution or otherwise) in, in any Company Subsidiary or any other personPerson, except for loans to wholly-owned Company Subsidiaries in the ordinary course of business. Except as set forth in on Section 4.03(b3.3(a) of the Company Disclosure LetterSchedule, there are no commitments outstanding or agreements of any character authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to which the Company is bound obligating or any Company Subsidiary. The Company has made available to Parent a complete and correct copy of the Rights Agreement, as amended to the date of this Agreement.
(b) Section 3.3(b) of the Company Disclosure Schedule sets forth, with respect to accelerate the vesting each Option outstanding as of any Company Stock Option as a result of the Offer or the Merger. All outstanding SharesOctober 6, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with 2006, (i) the number of Shares issuable therefor, (ii) the exercise price payable therefor upon the exercise of each such Option, (iii) the date on which such Option was granted, (iv) the Option Plan under which such Option was granted and whether such Option is an “incentive stock option” (as defined in Section 422 of the Code) or a nonqualified stock option, (v) for each Option, whether such Option is held by a Person who is not an employee of the Company or any Company Subsidiary, (vi) the extent to which such Option is vested and exercisable as of the date hereof and the extent of acceleration as a result, either alone, or together with another event or occurrence, of the transactions contemplated by this Agreement and (vii) the date on which such Option expires. As of the close of business on July 20, 2006, the weighted average exercise price of all applicable securities Laws outstanding Options was $8.53 per share of Company common stock. Since July 20, 2006, the Company has not granted or issued any Options. All of the Options have been granted solely to employees, consultants (who are individuals) or directors of the Company in the ordinary course of business consistent with past practice. The per Share exercise price of each Option was not (and other is not deemed for purposes of Section 409A of the Code to be) less than the fair market value of a Share as of the date of grant of such Option. All grants of Options were validly issued and properly approved by the Company Board of Directors (or a duly authorized committee or subcommittee thereof) in compliance with all applicable Laws and (ii) all requirements set forth recorded on the Financial Statements in applicable contractsaccordance with GAAP.
(c) Each outstanding share There are no shareholder agreements, voting trusts or other agreements or understandings to which the Company or any Company Subsidiary is a party relating to the voting or disposition of any shares of the capital stock of the Company or other type any of the Company Subsidiaries or granting to any person or group of persons the right to elect, or to designate or nominate for election, a director to the board of directors of the Company or any Company Subsidiary.
(d) All dividends or distributions on equity interests securities of each the Company and any Company Subsidiary that is duly authorized, validly issued, fully paid and nonassessable, and each such share is not wholly owned directly or indirectly by the Company that have been declared or another Subsidiary free and clear of all security interestsauthorized have been paid in full, liens, claims, pledges, options, rights of first refusal, agreements, limitations on other than the Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoeverregular quarterly cash dividend permitted to be paid pursuant to Section 5.1(b).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Oshkosh Truck Corp), Merger Agreement (JLG Industries Inc)
Capitalization. (ai) The authorized capital stock of the Company consists of 100,000,000 Shares 50,000,000 shares of Common Stock, 1,900,331 shares of which are designated as restricted voting stock, and 5,000,000 1,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7February 17, 20072000, (i1) 38,012,846 Shares are 13,985,086 shares of Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 20071,340,205 shares were designated restricted voting stock, (i2) 67,000 Shares are held in the treasury 2,717,315 shares of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are Common Stock were reserved for future issuance pursuant to outstanding Company Options granted under the Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this AgreementPlans, (3) no shares of Company Preferred Stock are preferred stock were issued and outstanding, and (4) no shares of Common Stock and no shares of preferred stock were held, in the aggregate, by the Company's Subsidiaries. All issued and outstanding shares of Common Stock have been duly authorized, validly issued and are fully paid and nonassessable and are not subject to, nor were they issued in violation of, any preemptive rights. Except as set forth in this Section 4.033.01(c) there are not as of the date hereof, and at the Effective Time there will not be, any outstanding or authorized shares of capital stock of the Company, options, warrants, rights, subscriptions, claims of any character, agreements, rights of redemption, convertible or exchangeable securities, or other commitments, contingent or otherwise, relating to Common Stock or any other shares of capital stock of the Company, pursuant to which the Company is or may become obligated to issue shares of Common Stock, any other shares of its capital stock or any securities convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of the capital stock of the Company.
(ii) The Company Disclosure Letter lists all of the Company's Subsidiaries. All of the outstanding shares of capital stock or other equity interests of each of the Company's Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, are not subject to, nor were they issued in violation of, any preemptive rights, and are owned, of record and beneficially, by the Company or one of its direct or indirect wholly owned Subsidiaries, and except for liens held by Bank of America in connection with the Merger Option and the rights Existing Credit Facility (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”defined in Section 4.03(b)), as amended on March 16free and clear of all liens, 2003encumbrances, between options or claims whatsoever. No shares of capital stock of any of the Company Company's Subsidiaries are reserved for issuance and Mellon Investor Services, L.L.C., as rights agent, there are no outstanding or authorized options, warrants or other warrants, rights, subscriptions, claims of any character, agreements, arrangements obligations, rights of redemption, convertible or commitments of any character exchangeable securities, or other commitments, contingent or otherwise, relating to the issued or unissued capital stock of any Subsidiary, pursuant to which such Subsidiary is or other type of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary may become obligated to issue or sell any shares of capital stock ofof such Subsidiary or any securities convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of such Subsidiary. Except for restrictions under applicable law, there are no restrictions of any kind which prevent the payment of dividends by any of the Company's Subsidiaries to the Company. The Company does not own, directly or indirectly, any capital stock, equity or ownership interest in any Person (other type of equity interests in, than the Subsidiaries listed on the Disclosure Schedule) that has any material assets or liabilities and neither the Company or nor any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares its Subsidiaries is subject to the award; (iv) the exercise any obligation or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right requirement to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary provide material funds for or to provide funds to, or make any material investment (in the form of a loan, loan or capital contribution contribution) to or otherwise) in, in any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsPerson.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Merger Agreement (Travel Services International Inc), Merger Agreement (Travel Services International Inc)
Capitalization. (a) The authorized capital stock of the Company consists solely of 100,000,000 Shares (i) 50,000,000 shares of Common Stock and 5,000,000 (ii) 10,000,000 shares of preferred stock, par value $0.001 .01 per share (“Company "Preferred Stock”"). As of December 7, 2007, (i) 38,012,846 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement: (A) 13,269,611 shares of Common Stock were issued and outstanding, all of which were validly issued, fully paid and nonassessable and were not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right or any similar right; (B) no shares of Company Preferred Stock are were issued or outstanding; (C) 2,526,799 shares of Common Stock were reserved for issuance upon exercise of outstanding Company Stock Options; (D) 500,000 shares of Series A Junior Participating Preferred Stock were reserved for issuance upon the exercise of the Rights and (E) 285,500 shares of Company Restricted Stock were issued and outstandingoutstanding under the Company Stock Plans. Except as set forth disclosed in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent3.3 or in Schedule 3.3, there are (i) no other options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock ofissue, or other type of equity interests insell, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchasetransfer, redeem or otherwise acquire any Shares shares of capital stock of or other equity interests in the Company or any securities convertible into or exchangeable for any capital stock or other type of equity interests or any Voting Debt (as defined below), (ii) no bonds, debentures, notes or other indebtedness having the right to vote on any matters on which stockholders of the Company may vote ("Voting Debt") and (iii) no agreements or commitments that restrict the transfer of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock of the Company or other type relate to the voting of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share any shares of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear require the Company to register any shares of all security interests, liens, claims, pledges, options, rights capital stock of first refusal, agreements, limitations on the Company’s . As used herein, "Company Stock Option" means any option to purchase Common Stock and "Company Stock Plans" means the plans providing for the grant of Company Stock Options or any Subsidiary’s voting rights, charges other issuance of capital stock of the Company and other encumbrances of any nature whatsoeverlisted in Schedule 3.3(b).
Appears in 2 contracts
Sources: Merger Agreement (D&b Acquisition Sub Inc), Merger Agreement (Dave & Busters Inc)
Capitalization. (a) The MGI is authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, to issue (i) 38,012,846 Shares 50,000,000 MGI Shares, (A) 4,434,607 of which are issued and outstandingoutstanding as of the date hereof, all (B) 1,019,931 of which are validly issued, fully paid and nonassessable. As reserved for issuance upon the exercise of December 10, 2007outstanding warrants, (iC) 67,000 Shares 667,500 of which are held in reserved for issuance upon the treasury exercise of the Company. As of December 8, 2007outstanding options, (iD) no Shares 86,997 (plus an indeterminate number of shares in connection with the Rocky Point and ▇▇▇▇▇▇ transactions and the Hitters' Haven lease) of which are held reserved for issuance pursuant to certain contracts and rights set forth in Schedule 3.03, and (E) 3,198,386 (plus (x) an indeterminate number of shares reserved for issuance upon conversion of accrued interest on such notes and (y) 83,035 shares that will be issuable per month commencing January 1, 1998 if a registration statement with respect to certain shares is not in effect by such date) of which are reserved for issuance pursuant to the Subsidiaries convertible notes set forth on Schedule 3.03, and (ii) 6,628,083 1,000,000 Preferred Shares, none of which are issued or outstanding as of the date hereof. The capitalization of MGI is set forth on Schedule 3.03, provided that up to an additional 175,000 MGI Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted may be issuable pursuant to the Company Stock Plans terms of certain agreements. There are no other series or classes of capital stock of MGI authorized to be issued, and the ESPP. As there are no other shares of outstanding capital stock of MGI.
(b) There are no issued or outstanding bonds, debentures, notes or other indebtedness of MGI or any of the date of this AgreementSubsidiaries which, no shares of Company Preferred Stock are issued and outstandingwithout conversion thereof by their terms entitle the holders thereof to the right to vote on any matters on which MGI Stockholders may vote ("Voting Debt"). Except as set forth in this Section 4.03Schedule 3.03, and except for the Merger Option and the neither MGI nor any Subsidiary is a party to any outstanding or authorized subscriptions, convertible securities, warrants, options, contracts, rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”preemptive or otherwise), as amended on March 16calls, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants commitments or other rights, agreements, arrangements or commitments demands of any kind or character relating to the any authorized and issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock ofof MGI or any of the Subsidiaries, including, without limitation, MGI Shares, or outstanding securities, obligations, rights, bonds, debentures, notes or other type of equity interests ininstruments convertible into or exchangeable for such stock, the Company which obligate MGI to seek authorization to issue, deliver or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect sell or cause to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company delivered or sold any Subsidiary to repurchase, redeem additional MGI Shares or otherwise acquire any MGI Preferred Shares or any other capital stock or other type Voting Debt of equity interests of MGI or any Subsidiary or to provide funds tosecurities convertible into, or make exercisable or exchangeable for, or evidencing the right to subscribe for any investment (in the form of a loansuch shares, capital contribution interests or otherwise) inVoting Debt or obligating MGI to grant, extend or enter into any Subsidiary such option, warrant, call, subscription or any other personright. Except as set forth in Section 4.03(b) of Schedule 3.03, immediately after the Disclosure LetterEffective Time, there are will be no subscriptions, options, warrants, calls, rights, commitments or agreements which will entitle (conditionally or unconditionally) any person or entity to purchase or otherwise acquire, or will obligate (conditionally or unconditionally) the Surviving Corporation (as MGI's successor) to sell, issue or deliver any shares of capital stock, any other equity interest or any Voting Debt of the Surviving Corporation or obligating the Surviving Corporation to grant, extend or enter into any such subscription, warrant, call, right, commitment or agreement. Except as set forth in Schedule 3.03, MGI has not adopted, authorized or assumed any plans, arrangements or practices for the benefit of its officers, employees or directors which require or permit the issuance, sale, purchase or grant of any character capital stock, other equity interests or Voting Debt of MGI, any options, warrants or other securities convertible into, or exercisable or exchangeable for, any such stock, interests or Voting Debt or any phantom shares, phantom equity interests or stock or equity appreciation rights.
(c) All of the outstanding MGI Shares have been duly authorized and validly issued, are fully paid and nonassessable, and, as of the date hereof, a total of 4,446,607 MGI Shares have been listed for trading on the Boston Stock Exchange and the NASDAQ Smallcap Market. None of the MGI Shares is subject to which the Company is bound obligating the Company to accelerate the vesting or has been issued in violation of any Company Stock Option as a result preemptive rights nor have any MGI Shares been issued in violation of the Offer Securities Act or the Mergersecurities or "blue sky" laws of any state or territory of the United States of America.
(d) Except as set forth in Schedule 3.03, MGI does not own any shares of stock or any other securities of any corporation or have any interest in any other Person. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all of the outstanding shares of capital stock or other type of equity interests ownership interest of each Subsidiary have been issued and granted in material compliance corporation, partnership or other organization, whether incorporated or unincorporated, which is consolidated with MGI for financial reporting purposes (a "Subsidiary") (i) all applicable securities Laws have been duly authorized and other applicable Laws and validly issued, (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests the case of each Subsidiary is duly authorizedcorporation, validly issued, are fully paid and nonassessable, and each such share is owned (iii) are owned, directly or indirectly, by the Company or another Subsidiary MGI, free and clear of all any mortgage, charge, pledge, lien, security interestsinterest, liensclaim, claimsencumbrance or restriction, pledges, options, rights of first refusal, agreements, limitations on the Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any kind or nature whatsoever.(other than any pledges or grants in favor of Parent), and (iv) are not subject to, nor have they been issued in violation of, any preemptive
Appears in 2 contracts
Sources: Merger Agreement (Family Golf Centers Inc), Merger Agreement (Metrogolf Inc)
Capitalization. (a) The As of the date hereof, the authorized capital stock of the Company consists of 100,000,000 15,000,000 Ordinary Shares and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”)7,125 A Ordinary Shares. As of December 7November 30, 20072003, (i) 38,012,846 9,945,366 Ordinary Shares are were issued and outstanding, all of which are validly issued, fully paid 7,015 A Ordinary Shares were issued and nonassessable. As of December 10, 2007, (i) 67,000 outstanding and 599,234 Ordinary Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are were reserved for future issuance pursuant to outstanding upon exercise of Company Stock Options and Company Stock Awards granted pursuant prior to the Company Stock Plans and the ESPPdate hereof. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or No other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company is authorized or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awardsissued. All issued and outstanding 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 nonassessable. There are no outstanding contractual obligations non-assessable and were issued free of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (preemptive rights and in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other personcompliance with applicable Laws. Except as set forth in Section 4.03(b) 2.2 of the Company Disclosure Letter or as otherwise contemplated by this Agreement, as of the date hereof, (i) there are no Company Options outstanding, and (ii) other than Company Options, there are no outstanding rights, subscriptions, warrants, puts, calls, unsatisfied preemptive rights, options, voting, redemption, repurchase or other agreements of any kind, to which the Company or any of its subsidiaries is a party, relating to any of the outstanding, authorized but unissued or unauthorized shares of the capital stock or any other equity security of the Company, and there is no authorized or outstanding security of any kind convertible into or exchangeable for any such capital stock or other equity security. No bonds, debentures, notes or other indebtedness of the Company or any of its subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which the stockholders of the Company or any of its subsidiaries may vote are issued or outstanding. Section 2.2 of the Company Disclosure Letter sets forth a complete and accurate list as of the date hereof of the holders of all outstanding Company Options, restricted stock, performance shares or units, deferred shares, stock units and other stock awards and the exercise price, date of grant and number of Ordinary Shares subject to each such outstanding Company Option. Except as set forth in Section 2.14 of the Company Disclosure Letter, there are no agreements, arrangements or commitments or agreements of any character to which the Company or any of its subsidiaries is bound obligating a party (contingent or otherwise) pursuant to which any person is, or may be, entitled to receive any payment based on the Company to accelerate the vesting revenues, assets, earnings or financial performance of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear any 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 whatsoeverits subsidiaries.
Appears in 2 contracts
Sources: Acquisition Agreement (Parker Hannifin Corp), Acquisition Agreement (Parker Hannifin Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 10,000,000 Shares and 5,000,000 10,000,000 shares of preferred stockPreferred Stock, par value $0.001 1.00 per share (“"Company Preferred Stock”"). As of December 7May 31, 20071997, (i) 38,012,846 5,727,422 Shares are were issued and outstanding, all of which are were validly issued, fully paid and nonassessable. As of December 10, 2007nonassessable and not subject to preemptive rights, (iii) 67,000 no Shares are were held in the treasury of the Company. As of December 8, 2007, (iiii) no Shares are were held by the Subsidiaries Subsidiaries, and (iiiv) 6,628,083 650,687 Shares are were reserved for future issuance pursuant to outstanding Company the Stock Options and Company Stock Awards granted pursuant to the Company Stock Option Plans and the ESPPof which 443,313 Shares were reserved for issuance upon exercise of existing options. As of the date of this Agreementhereof, no shares of Company Preferred Stock are issued and outstanding. Since May 31, 1997 to the date of this Agreement, the Company has not issued any Shares or granted any Options covering Shares. Except as set forth in this Section 4.033.03, and except for or Section 3.03 of the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Schedule, there are no options, convertible securities, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell or cause to be issued, delivered or sold, additional shares of capital stock of the Company or obligating the Company to grant, extend or enter into any subscription, option, warrant, right, convertible security or other similar agreement or commitment any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth disclosed in Section 4.03(b) 3.01 of the Disclosure LetterSchedule, there are no commitments (i) all of the outstanding capital stock of, or agreements other ownership interests in, each Subsidiary, has been validly issued, is (in the case of capital stock) fully paid and nonassessable and (in the case of partnership interests) not subject to current or future capital calls, and is owned by the Company, directly or indirectly, free and clear of any character to which the Company is bound obligating the Company to accelerate the vesting lien and free of any Company Stock Option as a result other charge, claim, encumbrance, limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of such capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (iownership interests) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each there are not now, and on the Tender Offer Acceptance Date there will not be, any outstanding share subscriptions, options, warrants, calls, rights, convertible securities or other agreements or commitments of any character relating to the issued or unissued capital stock or other type securities of equity interests any of each Subsidiary is duly authorizedthe Subsidiaries, validly issued, fully paid and nonassessable, and each such share is owned by or otherwise obligating the Company or another any Subsidiary free and clear of all security intereststo issue, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s transfer or sell any Subsidiary’s voting rights, charges and other encumbrances such securities or to make any payments in respect of any nature whatsoeverof its securities or its equity.
Appears in 2 contracts
Sources: Merger Agreement (McFarland Energy Inc), Merger Agreement (McFarland Energy Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 shares of preferred stockCompany Common Stock. At the close of business on June 5, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 20072008, (i) 38,012,846 Shares are 36,257,672 shares of Company Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (iii) no Shares are shares of Company Common Stock were held by the Subsidiaries and Company in its treasury, (iiiii) 6,628,083 Shares are 6,249,098 shares of Company Common Stock were reserved for future issuance pursuant under the Company Stock Plans (of which 4,016,093 shares of Company Common Stock were subject to outstanding Company Stock Options and Company Stock Awards granted pursuant to under the Company Stock Plans Plans) and the ESPP. As of the date of this Agreement, (iv) no shares of Company Preferred Stock are were issued or outstanding. All outstanding shares of Company Common Stock have been duly authorized and validly issued and outstandingare fully paid, nonassessable and free of preemptive rights. Since June 5, 2008, 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 referred to above in this Section 3.2(a). Except (A) as set forth above in this Section 4.033.2(a) or (B) with respect to the Effective Time, as expressly permitted by Section 5.2, as of the date of this Agreement there are not, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27the Effective Time there will not be, 2002 (the “Rights Agreement”)any shares of capital stock, as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants voting securities or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company issued and outstanding or any Subsidiary subscriptions, options, warrants, calls, convertible or obligating exchangeable securities, rights, commitments or agreements of any character providing for the Company or any Subsidiary to issue or sell issuance of any shares of capital stock ofstock, voting securities or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth Company, including any representing the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in purchase or otherwise receive any way by the transactions contemplated by this AgreementCompany Common Stock.
(b) The Company has made available to Parent accurate not issued and complete copies is not bound by any outstanding subscriptions, options, warrants, calls, convertible or exchangeable securities, rights, commitments or agreements of all Company Stock Plans pursuant to which any character providing for the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form issuance or disposition of all award agreements evidencing such awards. All Shares subject to issuance as aforesaidany shares of its capital stock, 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 nonassessablevoting securities or equity interests. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares shares of its capital stock, voting securities or equity interests (or any capital stock options, warrants or other type of equity interests of rights to acquire any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock stock, voting securities or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsinterests).
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Merger Agreement (Hilb Rogal & Hobbs Co), Merger Agreement (Willis Group Holdings LTD)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 one hundred million (100,000,000) shares of preferred common stock, par value $0.001 per share share, of which, as of the date of this Agreement, nine million six hundred seven thousand (“Company Preferred Stock”). As of December 7, 2007, (i9,607,000) 38,012,846 Shares shares are issued and outstanding, and all of which are validly issued, fully paid and nonassessable. As non-assessable and not subject to or issued in violation of December 10any purchase option, 2007call option, (i) 67,000 Shares are held in the treasury preemptive right, right of the Company. As of December 8first refusal, 2007subscription or any similar right, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares options, warrants, and other contractual rights to acquire ten million seven hundred eighty-four thousand eight hundred sixty (10,784,860) Company Shares, a detailed list of which is set forth on Schedule 5.2(a), listing the owner, exercise price, conversion terms (cash or cashless), expiration and other materially relevant data.
(b) Except as disclosed on Schedule 5.2(b), the Company does not own, directly or indirectly, any capital stock or other equity or other securities of any Person or have any other direct or indirect equity, voting or other ownership interest in any business or Person. There are reserved for future issuance pursuant not now, and at the Effective Time there will not be, any voting trusts or other agreements or understandings to outstanding Company Stock Options and Company Stock Awards granted pursuant which the Company, or to its knowledge any other Person, is a party or is bound with respect to the Company Stock Plans and the ESPP. As voting of the date capital stock of this Agreement, no shares of Company Preferred Stock are issued and outstandingthe Company. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent5.2, there are no optionsContracts of any kind to which the Company is a party or by which the Company is bound (i) obligating the Company to issue, warrants grant, deliver or sell, or cause to be issued, granted, delivered or sold, additional shares of capital stock of, or other rightsequity or voting interests in, agreementsthe Company (ii) obligating the Company to enter into any such Contracts, arrangements or commitments (iii) that give any person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights occurring to holders of any character relating to the issued or unissued capital stock or other type of equity interests Company Shares. Except as set forth on Schedule 5.2(c), there are no outstanding contractual obligations of the Company to repurchase, redeem or any Subsidiary or obligating the Company or any Subsidiary to issue or sell otherwise acquire any shares of capital stock of, or other type of equity or voting interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this AgreementCompany.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Merger Agreement (Grant Ventures Inc), Merger Agreement (Grant Ventures Inc)
Capitalization. (a) The Company’s authorized capital stock consists solely of the Company consists (i) 250,000,000 shares of 100,000,000 Shares Common Stock and 5,000,000 (ii) 50,000,000 shares of preferred stock, par value $0.001 0.0001 per share (the “Company Preferred Stock”). As of December 7November 20, 20072015 (the “Measurement Date”), (A) 61,738,833 shares of Common Stock were issued and outstanding, (B) 10,039,735 shares of Common Stock were reserved for issuance upon the exercise and vesting of outstanding Company Options, (C) 25,000 shares of Common Stock were reserved for issuance upon the exercise and vesting of outstanding Company SARs, (D) 281,250 shares of Common Stock were reserved for issuance upon the vesting and settlement of outstanding Company RSUs, (E) 3,690,662 shares of Common Stock were held in treasury by the Company, and (F) no shares of Preferred Stock were issued and outstanding.
(b) Except as set forth in Section 3.8(a), (i) 38,012,846 Shares there are issued and outstandingno shares of capital stock or securities convertible into, all or exchangeable or exercisable for, shares of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury capital stock of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares there are reserved for future issuance pursuant to outstanding no subscriptions, options, warrants, calls, rights, convertible securities or other agreements or commitments on the part of the Company Stock Options and Company Stock Awards granted pursuant or any of its Subsidiaries of any character relating to the issuance, transfer, sale, delivery, voting or redemption (including any rights of conversion or exchange under any outstanding security or other instrument) for any of the capital stock or other equity interests of, or other ownership interests in, the Company, (iii) there are no awards issued by the Company Stock Plans or any of its Subsidiaries based upon the value of any security issued by the Company, including any capital appreciation rights, phantom stock plans, stock appreciation rights or stock-based performance units and (iv) there are no other rights that give the ESPPholder thereof any economic or voting interest of a nature accruing to the holders of capital stock in the Company. As of From and after the Measurement Date through the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Serviceshas not issued any Common Stock, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity ownership interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth Company, other than the following information with respect to issuance of Common Stock upon the exercise of Company Options or Company SARs or the settlement of Company RSUs, in each Company Stock Option and Company Stock Award case outstanding as of December 8the Measurement Date and in accordance with their respective terms in effect at such time.
(c) All issued and outstanding shares of Common Stock and all shares of Common Stock that are subject to issuance under the Company Stock Plans or otherwise, 2007: (i) upon issuance prior to the state or country Effective Time in which accordance with the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares terms and subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to under which they are issuable, (i) are, or upon issuance will be be, duly authorized, validly issued, fully paid and nonassessable. non-assessable, and (ii) are not, or upon issuance will not be, subject to or issued in violation of any purchase option, call option, right of first refusal, pre-emptive rights, subscription rights or any similar rights.
(d) Section 3.8(d) of the Company Disclosure Letter sets forth a correct and complete list as of the date of this Agreement of all Company Equity Awards, including with respect to each such Company Equity Award (A) the number of shares of Common Stock subject to such outstanding Company Equity Award, and (B) with respect to each Company Option or Company SAR, the exercise price or ▇▇▇▇▇ ▇▇▇▇▇, as applicable.
(e) There are no outstanding contractual obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares or any shares of Common Stock, capital stock or other type of equity interests of any Subsidiary or to provide funds toof, or make any investment (in the form of a loan, capital contribution or otherwise) ownership interests in, any Subsidiary or any other personthe Company. Except as set forth in Section 4.03(b) None of the Disclosure Letter, there are no commitments or agreements of Company’s Subsidiaries owns any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsof, or ownership interests in, the Company.
(cf) Each outstanding share There are no voting trusts, proxies or similar agreements, arrangements or commitments 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 restricting the transfer of any shares of Common Stock, capital stock or other type of equity interests of, or ownership interests in, the Company or providing for registration rights with respect to shares of each Subsidiary is duly authorizedCommon Stock, validly issuedcapital stock or other equity interests of, fully paid and nonassessableor ownership interests in, and each such share is owned the Company. There are no bonds, debentures or notes issued by the Company or another Subsidiary free and clear any of all security interestsits Subsidiaries that entitle the holder thereof to vote, liensor that are convertible into or exchangeable for securities that entitle the holder thereof to vote, claims, pledges, options, rights together with stockholders of first refusal, agreements, limitations the Company on any matters with respect to the Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoever.
Appears in 2 contracts
Sources: Merger Agreement (Boulder Brands, Inc.), Merger Agreement (Pinnacle Foods Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are 25,000,000 shares of Common Stock, of which, as of the date hereof, 14,505,908 shares were issued and outstanding, all 380,150 shares were reserved for issuance upon the exercise of which outstanding stock options pursuant to the Company's option plans, and as of April 3, 2000, 3,958,244 shares were reserved for issuance upon the exercise of the outstanding warrants, and 1,786,359 shares were reserved for issuance upon the conversion of the Company's 6% Convertible Debentures, due 2004 (the "Convertible Debentures") and (ii) 3,000,000 shares of Preferred Stock, no par value (the "Preferred Stock"), of which, as of the date hereof, no shares were issued and outstanding. All of the outstanding shares of Common Stock are validly issued, issued and are fully paid and nonassessable. As No class of December 10Capital Stock of the Company is entitled to preemptive rights. Except as set forth on Schedule 2.3, 2007there are no outstanding options, (i) 67,000 Shares are held in the treasury warrants, subscription rights, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, shares of any class of Capital Stock of the Company. As of December 8, 2007or Contracts, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to which the Company is or may become bound to issue additional shares of its Capital Stock Plans and or options, warrants or other rights to purchase or acquire any shares of its Capital Stock. Except as set forth on Schedule 2.3, no warrants, bonds, debentures, notes or other Indebtedness or other security having the ESPP. As right to vote (or convertible into or exercisable for securities having the right to vote) on any matters on which stockholders of the date of this Agreement, no shares of Company Preferred Stock are may vote were issued and or outstanding. Except as set forth in this Section 4.03on Schedule 2.3 or as contemplated by the Transaction Documents, the Company is not a party to, and, to the Company's best knowledge, there is, and except for immediately after the Merger Option and Closing, there will be, no agreement, restriction or encumbrance (such as a preemptive or similar right of first refusal, right of first offer, proxy, voting agreement, voting trust, registration rights agreement, shareholders' agreement, etc., whether or not the rights (the “Rights”Company is a party thereto) issued pursuant with respect to the Preferred Stock Rights Agreementpurchase, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants sale or other rights, agreements, arrangements or commitments voting of any character relating to the issued or unissued capital stock or other type shares of equity interests Capital Stock of the Company (whether outstanding or any Subsidiary issuable upon conversion, exchange or obligating the Company or any Subsidiary to issue or sell any shares exercise of capital stock of, outstanding securities) or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations securities of the Company pursuant to any provision of Law, the Certificate of Incorporation or By-Laws, any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution agreement or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) on Schedule 2.3 or as contemplated by the Transaction Documents, no Person has the right to nominate or elect one or more directors of the Disclosure LetterCompany. Immediately following the transactions contemplated hereby, there are no commitments the Company's capitalization will be as set forth in Schedule 2.3. The Company has not declared or agreements paid any dividend or made any other distribution of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Sharescash, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsproperty to its stockholders since January 1, 1996.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Convertible Note Purchase Agreement (Appaloosa Management Lp), Convertible Note Purchase Agreement (Bio Plexus Inc)
Capitalization. (a) The authorized share capital stock of the Company consists of 100,000,000 Shares and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”)1,012,565,725 Shares. As of December 7the close of business on March 10, 20072017, (i) 38,012,846 222,044,019 Shares are were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 0 Shares are reserved for future were held in treasury by the Company, (iii) 28,807,680 Shares were subject to issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted (iv) 1,005,258 Shares were subject to issuance pursuant to the outstanding Company Stock Plans and the ESPPRSUs. As of Since such date through the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the has not issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock or voting securities of, or other type of equity interests in, the Company Company, or any Subsidiary. Section 4.03 securities convertible into, or exchangeable or exercisable for, shares of capital stock or voting securities of, or other equity interests in, the Disclosure Letter sets forth Company, other than Shares issued pursuant to any exercise of Company Options or the following information with respect to each vesting of Company Stock Option and Company Stock Award RSUs outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreementdate.
(b) The Company has made available to Parent accurate All issued and complete copies of outstanding Shares and all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards Shares that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject to issuance as aforesaidissuance, upon issuance on prior to the Closing in accordance with the terms and subject to the conditions specified in the instruments pursuant to under which they are issuableissuable (i) are, or upon issuance will be be, duly authorized, validly issued, fully paid and nonassessablenon-assessable, (ii) are not, or upon issuance will not be, subject to any pre-emptive rights and (iii) are, to the extent owned directly or indirectly by the Company, owned free and clear of all material Liens and transfer restrictions, except for such transfer restrictions of general applicability as may be provided under the 1933 Act and other applicable securities Laws.
(c) Except as set forth in Section 3.05(a), as of the date of this Agreement, there are no issued (i) shares in the share capital of the Company or other voting securities of or ownership interests in the Company, (ii) securities of the Company convertible into or exchangeable for shares in the share capital of the Company or other voting securities of or ownership interests in the Company, (iii) warrants, calls, options, shares of phantom stock or phantom stock rights, stock purchase, stock appreciation or other rights or obligations to acquire from the Company, or other obligation of the Company to issue, any shares in the share capital or other voting securities or ownership interests in or any securities convertible into or exchangeable for shares in the share capital or other voting securities or ownership interests in the Company or (iv) stock options, restricted shares, stock appreciation rights, performance units or similar securities, phantom stock rights or other rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares in the share capital or voting securities of or ownership interests in the Company, in each case issued by the Company or its Subsidiaries (the items in clauses (i) through (iv) being referred to collectively as the “Company Securities”). There are no preemptive or other outstanding contractual rights, options, warrants, conversion rights, stock appreciation rights, performance units, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the Company to issue or sell any Company Securities, or give any Person a right to subscribe for or acquire any Company Securities and no securities or obligations evidencing such rights are authorized, issued or outstanding. There are no voting trusts, proxies or other agreements, arrangements or commitments to which the Company or any of its Subsidiaries is a party with respect to the voting of any Company Securities. There are no bonds, debentures or notes issued by the Company or any of its Subsidiaries that entitle the holder thereof to vote together with shareholders of the Company on any matters with respect to the Company.
(d) Section 3.05(d) of the Company Letter sets forth, as of the date of this Agreement, a true, complete and correct list of each outstanding Company Equity Award, including: (i) the employee number of the holder thereof, (ii) the country of residence of the holder thereof, (iii) the number of Shares underlying each Company Equity Award; (iv) the date on which the Company Equity Award was granted; (v) the Company Equity Plan under which the Company Equity Award was granted; (vi) the number of Shares underlying each Company Equity Award that are vested and unvested as of the date of this Agreement; (vii) the exercise price of each Company Equity Award, if applicable; (viii) the expiration date of each Company Equity Award, if applicable; (ix) whether each such Company Equity Award was granted or issued, and is subject to Tax, pursuant to Section 3(i) of the ITO or Section 102, specifying the subsection of Section 102 pursuant to which the Company Equity Award was granted and is subject to Tax; (x) whether a Company Option is an incentive stock option (as defined in Section 422 of the Code) or a nonqualified stock option; and (xi) whether such Company Equity Award is held by a Person who is not an employee of the Company or one of its Subsidiaries; provided that the Company will separately provide to Parent such list with holders’ names in place of employee numbers. Except as set forth in Section 3.05(d) of the Company Letter, there are no commitments or agreements of any character to which the Company or any of its Subsidiaries is bound obligating the Company to accelerate the vesting or exercisability of any Company Equity Award as a result of the Transactions or any other transaction contemplated by this Agreement (whether alone or upon the occurrence of any additional or subsequent events). Each grant of Company Options and Company RSUs was validly issued and properly approved by the Company Board (or a duly authorized committee or subcommittee thereof) in compliance with all applicable Law and recorded on the consolidated financial statements of the Company in accordance with GAAP consistently applied, and no such grants involved any “back dating,” “forward dating” or similar practices with respect to the effective date of grant. No Company Option has an exercise price that has been or may be less than the fair market value of the Shares as of the date such Company Option was granted or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option, in each case, determined in accordance with the regulations and guidance under Section 409A of the Code. No outstanding stock options, restricted stock, restricted stock units, stock appreciation rights, phantom stock, profit participation, performance shares or other equity or equity-based awards associated with Shares have been issued or are outstanding other than pursuant to the Company Equity Plan and other than as set forth in Section 3.05(d) of the Company Letter. The Company Equity Plan that has been filed by the Company with the ITA under Section 102 for grant of awards through a trustee has been approved or is deemed approved by the ITA due to the passage of time. To the knowledge of the Company, all Company Equity Awards issued under Section 102 have been granted and/or issued, as applicable, in conformity with the applicable requirements of Section 102 including: (A) the filing of applicable documents with the ITA; (B) the appointment of an authorized Section 102 Trustee to hold such Company Equity Awards; and (C) the deposit of such Company Equity Awards with the Section 102 Trustee pursuant to the terms of Section 102 and the rules and regulation promulgated thereunder and/or any written instructions or approval issued by the ITA. The Company has made available to Parent and Buyer copies of all Tax rulings, fast track or other applications and approvals and any other written instructions or directions issued by the ITA in connection with or relating to Company Equity Awards.
(e) None of the Company Securities are owned by any Subsidiary of the Company. Except for the Company Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any material equity interest in any Person, or has any obligation or has made any agreement to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of such equity interests of any Subsidiary or interest, to provide funds to, or to make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsPerson.
(cf) Each outstanding share All dividends and distributions (including dividend equivalents) on any Company Securities that have been declared or authorized for payment prior to the date of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully this Agreement have been paid and nonassessable, 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 whatsoeverin full.
Appears in 2 contracts
Sources: Purchase Agreement (Mobileye N.V.), Purchase Agreement (Intel Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 10,000,000 Shares. At the close of business on May 26, 1999 (a) 3,468,202 Shares and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (ib) no Shares are were held by the Subsidiaries and Company in its treasury, (iic) 6,628,083 944,450 Shares are were reserved for future issuance pursuant to upon exercise of outstanding Company Stock Options (as defined in Section 7.4) and Company Stock Awards granted pursuant to (d) 305,000 Shares were issuable upon the Company Stock Plans and the ESPPexercise of outstanding Warrants (as defined in Section 7.4. As of the Since such date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests voting securities of the Company were issued, reserved for issuance, issuable or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awardsoutstanding. All outstanding Shares subject to issuance as aforesaidare, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuableall Shares that may be issued will be, will be when issued, duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights. There are no 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 above, as of the date hereof, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company is a party or by which any of them is bound obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of the Company or obligating the Company to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any shares of capital stock or of the Company (other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except than as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts7.4).
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Endogen Inc), Agreement and Plan of Merger (Endogen Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 250,000,000 shares of preferred stockCompany Common Stock. At the close of business on June 16, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 20071998, (i) 38,012,846 97,393,822 Shares are were issued and outstanding, all (ii) 2,156,179 shares of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are Company Common Stock were held by the Subsidiaries Company in its treasury, and (iiiii) 6,628,083 Shares are 2,507,990 shares of Company Common Stock were reserved for future issuance pursuant to under outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except (as set forth defined in this Section 4.037.4 hereof), and except for the Merger Option contingent and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awardsperformance-based restricted stock. All outstanding Shares subject to issuance as aforesaidare, upon issuance on the terms and conditions specified in the instruments pursuant to all Shares which they are issuablemay be issued will be, will be when issued, duly authorized, validly issued, fully paid and nonassessable. There are no 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 for the Company Stock Options, DSCs (as defined in Section 7.4 hereof) and contingent and performance-based restricted stock granted on or prior to March 31, 1998 under any stock option or incentive plan of the Company, and outstanding as of the date of this Agreement, there are not any securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which it is bound 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 or other voting securities of the Company or any of its Subsidiaries or obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. As of the date of this Agreement, there are not any outstanding contractual obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares shares of capital stock of the Company or any capital stock of its Subsidiaries.
(b) The Company will make available immediately following the date of this Agreement the certificates of incorporation and by-laws or other type organizational documents of equity interests its Subsidiaries, in each case as amended to the date of this Agreement. The respective certificates of incorporation and by- laws or other organizational documents of the Subsidiaries of the Company do not contain any Subsidiary provision limiting or otherwise restricting the ability of the Company to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other personcontrol such Subsidiaries. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result all of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock of the Subsidiaries are beneficially owned by the Company (or other type by another wholly owned Subsidiary of equity interests the Company or by the Company and another wholly owned subsidiary of each Subsidiary have been issued the Company) free and granted in material compliance with (i) all applicable securities Laws clear of any lien, charge, encumbrance or claim of whatever nature and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is are duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear of all security interests, liens, claims, pledges. There are not any securities, options, rights of first refusalwarrants, calls, rights, commitments, agreements, limitations on the Company’s arrangements or any Subsidiary’s voting rights, charges and other encumbrances undertakings of any nature whatsoeverkind to which any Subsidiary is a party or by which any Subsidiary is bound obligating such Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of such Subsidiary or obligating such Subsidiary to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking.
Appears in 2 contracts
Sources: Merger Agreement (Lyondell Petrochemical Co), Merger Agreement (Lyondell Petrochemical Co)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 250,000,000 shares of Company Common Stock and 5,000,000 8,531,431 shares of preferred stock, par value $0.001 $ 1.00 per share (“Company the "Preferred Stock”"). As At the close of December 7business on February 14, 2007, 2000: (i) 38,012,846 Shares are 96,578,064 shares of Company Common Stock were issued and outstanding; (ii) 12,738,076 shares of Company Common Stock were reserved for issuance under the Company's stock option and stock benefit plans and arrangements, all (iii) no shares of which Preferred Stock were issued and outstanding and (iv) 15,427,059 shares of Company Common Stock were held by the Company in its treasury. All issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”4.3(a) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Letter, there are no outstanding or authorized options, warrants or other warrants, rights, subscriptions, claims of any character, agreements, arrangements obligations, convertible or commitments of any character exchangeable securities, or other commitments, contingent or otherwise, relating to the issued or unissued shares of capital stock or other type of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock ofits Subsidiaries, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted or any of its Subsidiaries is or may become obligated to issue shares of its capital stock or other equity interests or any securities convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of the capital stock or other equity interests of the Company Stock Options and Company Stock Awards that are currently outstanding and the form or any of all award agreements evidencing such 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 nonassessableits Subsidiaries (each an "Issuance Obligation"). There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares outstanding securities of the Company or any capital stock security described in the foregoing sentence. The Company has no authorized or outstanding bonds, debentures, notes or other type indebtedness the holders of equity interests which have the right to vote (or convertible or exchangeable into or exercisable for securities the holders of which have the right to vote) with the shareholders of the Company on any Subsidiary or to provide funds to, or make any investment matter (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person"Voting Debt"). Except as set forth in Section 4.03(b4.3(a) of the Company Disclosure Letter, there are no commitments or agreements restrictions of any character to kind which prevent or restrict the payment of dividends by the Company is bound obligating or any of its Subsidiaries and there are no limitations or restrictions on the Company right to accelerate the vesting vote, sell or otherwise dispose of any Company Stock Option as a result such capital stock or other ownership interests.
(b) All of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options issued and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Significant Subsidiary have been issued are validly existing, fully paid and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements non-assessable. Except as set forth in applicable contractsthe Company SEC Reports or Section 4.3(b) of the Company Disclosure Letter, no Significant Subsidiary of the Company has outstanding Voting Debt and no Significant Subsidiary of the Company is bound by, obligated under, or party to an Issuance Obligation with respect to any security of the Company or any Significant Subsidiary of the Company and there are no obligations of the Company or any of its Significant Subsidiaries to repurchase, redeem or otherwise acquire any outstanding securities of any of its Significant Subsidiaries or any capital stock of, or other ownership interests in, any of its Significant Subsidiaries.
(c) Each outstanding share Except for the Company's interest in its Significant Subsidiaries, and as set forth in the Company SEC Reports or Section 4.3(c) of capital stock the Company Disclosure Letter, the Company does not directly or indirectly own any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for any equity or similar interest in, any corporation, partnership, joint venture, limited liability company or other type of equity interests of each Subsidiary business association or entity which is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by material to the Company or another Subsidiary free and clear of all security interestsits Subsidiaries, 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 whatsoevertaken as a whole.
Appears in 2 contracts
Sources: Merger Agreement (Upm Kymmene Corp), Merger Agreement (Champion International Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 50,000,000 shares of Company Common Stock and 5,000,000 shares of preferred stock, par value $0.001 .01 per share (“"Company Preferred Stock”"), of which 150,000 shares of Company Preferred Stock have been designated as Series A Preferred Stock. As of December 7, 2007the close of business on the date one business day prior to the date hereof, (i) 38,012,846 Shares are 19,693,629 shares of Company Common Stock were issued and outstanding, all (ii) no shares of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are Company Common Stock were held in the treasury of the Company. As of December 8, 2007, (iiii) no Shares are held by the Subsidiaries shares of Series A Preferred Stock were issued and outstanding, (iiiv) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no other shares of Company Preferred Stock are were issued or outstanding, (v) 7,088,823 shares of Company Common Stock were reserved for issuance under the Company's employee stock option plans and the option agreements listed in Section 4.3(a) of the Company Disclosure Schedule in the amounts stated in such section and (vi) there were no bonds, debentures, notes or other evidences of indebtedness issued or outstanding having the right to vote on any matters on which the Company's stockholders may vote ("Voting Debt").
(b) All the outstanding shares of capital stock of the Company have been duly authorized and validly issued and outstanding. are fully paid and non-assessable free of all preemptive or similar rights and were issued in accordance with the registration or qualification requirements of the Securities Act and any relevant state securities laws or pursuant to valid exemptions therefrom.
(c) Except as set forth in this Section 4.03, and except for the Merger Option Warrants and the rights (the “Rights”Company Stock Options, which are listed on Sections 2.3(b)(i)(A) issued pursuant to the Preferred Stock Rights Agreement, dated as and 2.3(b)(i)(B) of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Schedule, there are no warrants, options, warrants or other subscriptions, calls, rights, agreementscommitments, arrangements convertible securities or commitments any other agreements of any character relating to or by which the issued Company or unissued any of its Subsidiaries is a party or is bound which, directly or indirectly, obligate the Company or any of its Subsidiaries to issue, deliver or sell or cause to be issued, delivered or sold any additional shares of Company Common Stock, Company Preferred Stock or any other capital stock stock, equity interest or other type of equity interests Voting Debt of the Company or any Subsidiary of the Company, any securities convertible into, or exercisable or exchangeable for, or evidencing the right to subscribe for any such shares, interests or Voting Debt, or any phantom shares, phantom equity interests or stock or equity appreciation rights, or obligating the Company or any of its Subsidiaries to grant, extend or enter into any such subscription, option, warrant, call or right (collectively, "Convertible Securities"). Neither the Company nor any Subsidiary thereof is subject to issue any obligation (contingent or sell otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock.
(d) Except as disclosed in Section 4.3(d) of the Company Disclosure Schedule, there are not, and immediately after the Effective Time, there will not be, any outstanding or authorized subscriptions, options, warrants, calls, rights, commitments or other agreements of any character to or by which the Company or any of its Subsidiaries is a party or is bound that, directly or indirectly, (i) call for or relate to the sale, pledge, transfer or other disposition by the Company or any Subsidiary of the Company of any shares of capital stock ofstock, any partnership or other equity interests or any Voting Debt of any Subsidiary of the Company, or (ii) relate to the voting or control of such capital stock, partnership or other type of equity interests inor Voting Debt.
(e) (i) no stockholder of the Company is entitled to any preemptive or similar rights to subscribe for shares of capital stock of the Company, (ii) the Company has not agreed to register any of its securities under the Securities Act (other than pursuant to the registration rights agreement listed in Section 4.3(e) of the Company Disclosure Schedule) and (iii) there are no existing voting trusts or similar agreements to which the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information its Subsidiaries is a party with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price voting of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations capital stock of the Company or any Subsidiary of its Subsidiaries.
(f) No party (except the Company) to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth registration rights agreements listed in Section 4.03(b4.3(e) of the Company Disclosure Letter, there Schedule (excluding those registration rights agreements that are no commitments or agreements mentioned in Section 8.2(g) hereof) is an "affiliate" of any character to which the Company is bound obligating for purposes of Rule 145 under the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsSecurities Act.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Merger Agreement (Four Media Co), Agreement and Plan of Merger (Liberty Media Corp /De/)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares 150,000,000 shares of Company Common Stock and 5,000,000 2,000,000 shares of preferred stock, par value $0.001 .01 per share share, of the Company (“Company Preferred Stock”). As of December 7, 2007the date hereof, (i) 38,012,846 Shares 16,743,320 shares of Company Common Stock (other than treasury shares) are issued and outstanding, all of which are validly issuedissued and fully paid, fully paid nonassessable and nonassessable. As free of December 10, 2007preemptive rights, (iii) 67,000 Shares 444 shares of Company Common Stock are held in the treasury of the Company. As of December 8, 2007Company or by its Subsidiaries, (iiii) no Shares 2,149,758 shares of Company Common Stock are held by issuable (and such number is reserved for issuance) upon exercise of Company Options outstanding as of the Subsidiaries date hereof, (iv) 3,827,632 shares of Company Common Stock are issuable (and such number is reserved for issuance) upon exercise of Company Warrants outstanding as of the date hereof, and (iiv) 6,628,083 Shares 2,274,479 shares of Company Common Stock are issuable (and such number is reserved for future issuance pursuant to issuance) upon exercise of Company Debentures outstanding Company Stock Options and Company Stock Awards granted pursuant to as of the Company Stock Plans and the ESPPdate hereof. As of the date of this Agreementhereof, no shares of Company Preferred Stock are issued and or outstanding. All capital stock or other equity securities of the Company have been issued in compliance with applicable federal and state securities laws.
(b) Except as for Company Options to purchase not more than 2,149,758 shares of Company Common Stock, Company Warrants to purchase not more than 3,827,632 shares of Company Common Stock, Company Debentures to purchase not more than 2,274,479 shares of Company Common Stock and arrangements and agreements set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as 3.3 of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Schedule, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound relating to the issued or unissued capital stock or other type of equity interests Equity Interests of the Company or any Subsidiary of its Subsidiaries, or securities convertible into or exchangeable for such capital stock or other Equity Interests, or obligating the Company or any Subsidiary of its Subsidiaries to issue or sell any shares of its capital stock or other Equity Interests, or securities convertible into or exchangeable for such capital stock of, or other type of equity interests Equity Interests in, the Company or any Subsidiaryof its Subsidiaries. Since January 31, 2004, the Company has not issued any shares of its capital stock, or securities convertible into or exchangeable for such capital stock or other Equity Interests, other than those shares of capital stock reserved for issuance as set forth in this Section 4.03 3.3 or Section 3.3 of the Company Disclosure Letter sets forth Schedule. The Company has provided Parent with a true and complete list, as of the following information with respect to each date hereof, of the prices at which outstanding Company Options may be exercised under the Company Stock Option and Company Stock Award outstanding as of December 8Plans, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to Company Options outstanding at each such price and the award; (iv) the exercise or purchase price vesting schedule of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awardsOptions. All Shares shares of Company Common Stock subject to issuance as aforesaidunder the Company Options, the Company Warrants and the Company Debentures, 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 paid, nonassessable and nonassessable. There free of preemptive rights.
(c) Except for the Company Voting Agreement and as set forth in Section 3.3 of the Company Disclosure Schedule, there are no outstanding contractual obligations of the Company or any Subsidiary to of its Subsidiaries (i) restricting the transfer of, (ii) affecting the voting rights of, (iii) requiring the repurchase, redeem redemption or otherwise acquire disposition of, or containing any Shares right of first refusal with respect to, (iv) requiring the registration for sale of, or (v) granting any preemptive or antidilutive right with respect to, any shares of Company Common Stock or any capital stock of, or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) Equity Interests in, any Subsidiary the Company or any other personof its Subsidiaries. Except as set forth in Section 4.03(b) 3.3 of the Company Disclosure LetterSchedule, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary of the Company is duly authorized, validly issued, fully paid paid, nonassessable and nonassessablefree of preemptive rights and is owned, beneficially and each such share is owned of record, by the Company or another Subsidiary of its Subsidiaries, free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s or any such other of its Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoever. There are no outstanding contractual obligations of the Company or any of its Subsidiaries to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any of its Subsidiaries or any other person, other than guarantees by the Company of any indebtedness or other obligations of any wholly-owned Subsidiary.
(d) Except for the Company Debentures, the Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter. The Company has not adopted a stockholder rights plan.
(e) Except as set forth in Section 3.3 of the Company Disclosure Schedule, none of the Merger or other transactions contemplated hereby will result in an acceleration of vesting, or modification of vesting terms, with respect to any Company Options.
Appears in 2 contracts
Sources: Merger Agreement (Zhone Technologies Inc), Merger Agreement (Sorrento Networks Corp)
Capitalization. (a) The authorized capital stock of the -------------- Company consists of 100,000,000 Shares 6,000,000 shares of common stock, par value $.02, of the Company (the "Common Stock"), and 5,000,000 100,000 shares of preferred stock, par value $0.001 .01 per share (“Company the "Preferred Stock”"). As of December 7, 2007, (i) 38,012,846 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreementhereof, no there were (i) 2,236,449 issued and outstanding shares of Company Preferred Common Stock are and (ii) no issued and outstandingoutstanding shares of Preferred Stock. Except In addition, as set forth of the date hereof, (i) 1,272,508 shares of Common Stock were reserved for issuance pursuant to grants made in this Section 4.03accordance with the Company's stock option plans, and except (ii) 985,000 shares of Common Stock were authorized for the Merger Option and the rights (the “Rights”) issued issuance pursuant to the Preferred 2001 Stock Rights Option Plan, and (iii) 467,925 shares of Common Stock were reserved for issuance pursuant to securities exercisable for, or convertible into or exchangeable for, shares of Common Stock. This Agreement, dated as and the transactions contemplated hereby, will not cause a mandatory redemption, liquidation, acceleration or vesting of June 27any other right under any outstanding subscriptions, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants calls, contracts, voting trusts, proxies, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other rights, agreements, arrangements or commitments agreement. All of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any and outstanding shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenon-assessable. There Except for the Series A Preferred Stock or as set forth on Section 3.3 of the Company Disclosure Schedule, there are no ----------- outstanding contractual obligations subscriptions, options, calls, contracts, voting trusts, proxies, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement, obligating the Company or any Subsidiary of its subsidiaries to repurchaseissue, redeem deliver or otherwise acquire any Shares sell, or any cause to be issued, delivered or sold, additional shares of capital stock or other type of equity interests of any Subsidiary or to provide funds tothe Company, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of grant, extend or enter into any Company Stock Option as a result of the Offer such agreement or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractscommitment.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Olympic Cascade Financial Corp), Securities Purchase Agreement (Olympic Cascade Financial Corp)
Capitalization. (a) The 5.3.1. As of the date hereof, the authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 500,000 shares of preferred stockPreferred Stock and 15,000,000 shares of Company Common Stock. At the close of business on February 1, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 20072001, (ia) 38,012,846 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are were outstanding and (b) 5,825,309 shares of Company Common Stock were outstanding. Section 5.3.1 of the Company Disclosure Schedule contains a true, complete and correct list as of such date of all outstanding Options, warrants, rights and other securities of the Company convertible into, or exercisable for, shares of capital stock of the Company, the holders of such Options, warrants, rights and other securities, and the exercise prices with respect to such Options, warrants, rights and other securities. All outstanding shares of Company Common Stock have been duly authorized and validly issued and outstandingare fully paid, non-assessable and free of preemptive rights. No shares of Company Common Stock are owned by any direct or indirect Subsidiary of the Company.
5.3.2. Except as set forth described in this Section 4.035.3, set forth on Section 5.3.1 of the Company Disclosure Schedule and as contemplated by this Agreement, (a) no shares of capital stock or other equity securities of the Company are authorized, issued or outstanding, or reserved for issuance, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no optionsOptions, warrants or other rights (including registration rights), agreements, arrangements or commitments of any character to which the Company or any of its current Subsidiaries is a party relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary or obligating of its current Subsidiaries that require the Company or any Subsidiary of its current Subsidiaries to grant, issue or sell any shares of the capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary of its current Subsidiaries by sale, lease, license or otherwise; (b) neither the Company nor any of its Subsidiaries have any obligation, contingent or otherwise, to repurchase, redeem or otherwise acquire any Shares or any shares of the capital stock or other type of equity interests of the Company or any Subsidiary of its Subsidiaries; (c) neither the Company nor any of its Subsidiaries, directly or to provide funds toindirectly, owns, or make has agreed to purchase or otherwise acquire, the capital stock or other equity interests of, or any investment (in the form of a loan, interest convertible into or exchangeable or exercisable for such capital contribution stock or otherwise) insuch equity interests of, any Subsidiary corporation, partnership, joint venture or any other person. Except as set forth entity that would be material in Section 4.03(bvalue to the Company; and (d) of the Disclosure Letter, there are no commitments voting trusts, proxies or other agreements of any character or understandings to which the Company or any of its Subsidiaries is bound obligating a party with respect to the Company to accelerate the vesting voting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear any 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 whatsoeverits Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Gart Sports Co), Merger Agreement (Oshmans Sporting Goods Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 300,000,000 Company Common Shares and 5,000,000 500,000 shares of preferred stock, no par value $0.001 per share (the “Company Preferred StockShares”, and together with the Company Common Shares, the “Company Shares”). As All of December 7, 2007, (i) 38,012,846 the outstanding Company Shares are issued have been duly authorized and outstanding, all of which are validly issued, fully paid and nonassessable. As At the close of business on December 1015, 2007, 2011 (the “Capitalization Date”): (i) 67,000 103,920,798 Company Common Shares are held in the treasury of the Company. As of December 8, 2007, (i) were issued and outstanding and there were no Company Common Shares are held by the Subsidiaries and Company in its treasury; (ii) 6,628,083 7,001,586.26 Company Common Shares are were reserved and available for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted issued pursuant to the Company Stock Plans and the ESPP. As Incentive Plan; Section 3.03(a) of the Company Disclosure Letter contains a correct and complete list as of December 15, 2011 of outstanding Company Stock Options and Company Awards under the Company Stock Incentive Plan, including the holder to whom the applicable security was issued, date of this Agreementgrant, no shares type of award, vesting schedule, number of Company Common Shares, the expiration date of such award (if applicable) and, where applicable, exercise or reference price per Company Common Share.
(iii) 2,242,237 Company Common Shares were reserved for the grant of additional awards under the Company Stock Incentive Plan; and
(iv) no Company Preferred Stock are Shares were issued and outstanding. or outstanding or were held by the Company in its treasury.
(b) Except as set forth above in this Section 4.03, and except for the Merger Option and the rights (the “Rights”3.03(a) issued pursuant to the Preferred Stock Rights Agreement, dated or as of June 27, 2002 (the “Rights Agreement”may otherwise be permitted under Section 5.01(k)(ix), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no preemptive or other outstanding rights, options, warrants or other warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements arrangements, calls, derivative contracts, forward sale contracts, commitments or commitments rights of any character relating kind that obligate the Company or any of its Subsidiaries to issue, sell or deliver, or cause to be issued, sold or delivered, or to issue, grant, extend or enter into any such option, warrant, right, agreement, call, derivative contract, forward sale contract or commitment, or obligating the issued Company to make any payment based on or unissued resulting from the value or price of the Company Common Shares or of any such option, warrant, right, agreement, call, derivative contract, forward sale contract or commitment, any shares of capital stock or other type of equity interests securities of the Company or any Subsidiary of its Subsidiaries or obligating any securities or obligations convertible or exchangeable into or exercisable for, or giving any person a right to subscribe for or acquire, any securities of the Company or any Subsidiary to issue of its Subsidiaries, and no securities or sell any shares obligations evidencing such rights are authorized, issued or outstanding. At the close of capital stock ofbusiness on the Capitalization Date, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) no Company Common Shares were owned by any Subsidiary of the state or country in which the recipient resides; Company and (ii) there were no outstanding stock options, stock appreciation rights, “phantom” stock rights, performance units, rights to receive Company Common Shares or any other Equity Securities of the particular plan Company on a deferred basis or other rights that are linked to the value of the Company Common Shares or any other Equity Securities of the Company (collectively, “Company Stock-Based Awards”) other than those Company Stock-Based Awards specified in Section 3.03(a). All outstanding Company Common Shares are, and all Company Common Shares which may be issued pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the awardany Company Stock-Based Awards will be, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated when issued in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awards. All Shares subject to issuance as aforesaid, upon issuance on accordance with the terms and conditions specified in the instruments pursuant to which they are issuablethereof, will be duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exercisable or exchangeable for, securities of the Company having the right to vote) with the stockholders of the Company on any matters. Except as set forth above in Section 3.03(a) and for Company Common Shares issuable pursuant to the Company Stock Incentive Plan or as may otherwise be permitted under Section 5.01(a), (x) there are not issued, reserved for issuance or outstanding contractual (A) any Equity Securities of the Company or any of its Subsidiaries, (B) any Convertible Securities of the Company or any of its Subsidiaries, (C) any obligations of the Company or any Subsidiary of its Subsidiaries to issue any Equity Securities or Convertible Securities or (D) any Company Stock-Based Awards, and (y) there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares Equity Securities or any capital stock or other type Convertible Securities of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear any of all security interestsits Subsidiaries or to issue, liensdeliver or sell, claimsor cause to be issued, pledgesdelivered or sold, options, rights any such securities. Neither the Company nor any of first refusal, agreements, limitations on its Subsidiaries is a party to any voting Contract with respect to the Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoeversuch securities.
Appears in 2 contracts
Sources: Merger Agreement (RSC Holdings Inc.), Merger Agreement (United Rentals Inc /De)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 thirty million (30,000,000) Shares and 5,000,000 one million (1,000,000) shares of preferred stock, par value $0.001 per share stock (“Company Preferred Stock”). As of December 7June 22, 20072022, (i) 38,012,846 9,033,766 Shares are (other than treasury shares and the Company PSUs, but including Performance-Vested Restricted Shares and Time-Vested Restricted Shares) were issued and outstanding, all of which are were validly issuedissued and fully paid, fully paid nonassessable and nonassessable. As free of December 10preemptive rights (or will be in the case of the Performance-Vested Restricted Shares and Time-Vested Restricted Shares, 2007when issued against receipt of the consideration therefor in accordance with the provisions of the Company Equity Plan), (iii) 67,000 93,583 Shares are subject to outstanding Company Stock Options, (iii) 247,135 Shares are subject to outstanding Performance-Vested Restricted Shares, (iv) 79,557 Share equivalents are subject to outstanding Company PSUs, (v) 281,931 Shares are subject to outstanding Time-Vested Restricted Shares, (vi) no shares of Company Preferred Stock were issued and outstanding, and (vii) 3,447,676 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved Except for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As Awards convertible into not more than an aggregate of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between 702,206 Shares under the Company and Mellon Investor Services, L.L.C., as rights agentEquity Plan, there are no options, warrants or other rights, agreements, arrangements or commitments of any character (including any shareholders agreements, voting trusts, proxies or other similar agreements or any obligations requiring the registration for sale of any shares of capital stock of or other voting or equity interests) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound relating to the issued or unissued capital stock or other type of equity interests Equity Interests of the Company Company, or any Subsidiary securities convertible into or exchangeable for such capital stock or other Equity Interests of the Company, or obligating the Company or any Subsidiary to issue or sell any shares of its capital stock or other Equity Interests of the Company, or securities convertible into or exchangeable for such capital stock of, or other type of equity interests Equity Interests in, the Company or any SubsidiaryCompany. Section 4.03 Since January 1, 2020 and prior to the date of this Agreement, except for the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number issuance of Shares subject to under the award; (iv) Company Equity Plan in accordance with its terms, the exercise Company has not issued any shares of its capital stock or purchase price other Equity Interests, or securities convertible into or exchangeable for such capital stock or other Equity Interests, other than those shares of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated capital stock reserved for issuance described in any way by the transactions contemplated by this AgreementSection 3.2(a).
(b) The Company has made available to previously provided Parent accurate with a true and complete copies list, as of all the date hereof, with respect to each outstanding Company Stock Plans Award, (i) the holder thereof, (ii) the grant date thereof, (iii) the vesting conditions thereof and (iv) the total number of Shares or total amount of cash, as applicable, that may be received pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awardsthereto. All Shares subject to issuance as aforesaidunder the Company Equity Plan, 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 paid, nonassessable and nonassessablefree of preemptive rights. There are no outstanding contractual obligations of the Company or any Subsidiary to of its Subsidiaries (i) restricting the transfer of, (ii) affecting the voting rights of, (iii) requiring the repurchase, redeem redemption or otherwise acquire disposition of, or containing any right of first refusal with respect to, (iv) requiring the registration for sale of, or (v) granting any preemptive or antidilutive right with respect to, any Shares or any capital stock of, or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) Equity Interests in, any Subsidiary the Company or any other personof its Subsidiaries.
(c) Section 3.2(c) of the Company Disclosure Schedule sets forth a complete list of each Subsidiary of the Company, together with its jurisdiction of organization or incorporation and the ownership interest (and percentage interest) of the Company or its Subsidiaries, in such Subsidiary. Except as set forth in Section 4.03(b3.2(c) of the Company Disclosure LetterSchedule, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result and its Subsidiaries own, directly or indirectly, all of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options issued and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary of the Subsidiaries of the Company, free and clear of any Liens other than (x) Liens with respect to the Company Credit Facility, (y) Permitted Liens under clause (viii) of the definition thereof, and (z) transfer and other restrictions under applicable securities Laws, and all of such outstanding shares of stock or other equity securities have been duly authorized and validly issued and granted in material compliance with (i) all applicable securities Laws are fully paid, nonassessable and free of preemptive rights. There are no options, warrants or other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share rights, agreements, arrangements or commitments of any character to which any Subsidiary of the Company is a party or by which any Subsidiary of the Company is bound relating to the issued or unissued capital stock or other type Equity Interests of equity interests such Subsidiary, or securities convertible into or exchangeable for such capital stock or other Equity Interests, or obligating any Subsidiary of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company to issue or another sell any shares of its capital stock or other Equity Interests, or securities convertible into or exchangeable for such capital stock of, or other Equity Interests in, such Subsidiary. No Subsidiary free and clear of all security intereststhe Company owns any Shares or any capital stock of, liensor other Equity Interests in, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s .
(d) Neither the Company nor any of its Subsidiaries has outstanding bonds, debentures, notes or other indebtedness, or other debt securities, the holders of which have the right to vote, whether on an as-converted basis or otherwise, (or which are convertible into or exercisable for securities having the right to vote) on any Subsidiary’s voting rights, charges and other encumbrances matters on which stockholders of any nature whatsoeverthe Company may vote.
Appears in 2 contracts
Sources: Merger Agreement (Usa Truck Inc), Merger Agreement (Usa Truck Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 (i) 120,000,000 Shares and 5,000,000 (ii) 30,000,000 shares of preferred stock, $0.50 par value $0.001 per share (“Company share, of which 300,000 shares of preferred stock are classified as Series A Junior Participating Preferred Stock”). As of December 7August 6, 20072008, there were outstanding 35,930,604 Shares (i) 38,012,846 Shares are issued and outstanding, all of which an aggregate of 464,993 are Company Restricted Shares), no shares of preferred stock, Performance Shares settleable in 412,000 Shares, and employee stock options to purchase an aggregate of 1,622,833 Shares (of which options to purchase an aggregate of 1,313,533 Shares were exercisable). All outstanding shares of capital stock of the Company have been, and all shares that may be issued pursuant to any employee stock option or other compensation plan or arrangement will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued, fully paid and nonassessablenonassessable and free of preemptive rights. As No Subsidiary or Affiliate of December 10, 2007, (i) 67,000 Shares are held in the treasury Company owns any shares of capital stock of the Company. As .
(b) Section 5.05(b) of December 8the Company Disclosure Schedule contains a complete and correct list of (A) each outstanding Employee Stock Option, 2007including the holder, date of grant, exercise price, vesting schedule and number of Shares subject thereto, (iB) no Shares are held by each outstanding Company Restricted Share, including the Subsidiaries holder, date of grant and number vested and (iiC) 6,628,083 each outstanding Performance Share, including the holder, date of grant and number of Shares subject thereto.
(c) There are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to no bonds, debentures, notes or other indebtedness of the Company Stock Plans and having the ESPP. As right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the date of this Agreement, no shares of Company Preferred Stock are issued and outstandingmay vote. Except as set forth in this Section 4.035.05 and for changes since August 6, and except for 2008 resulting from the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as exercise of June 27, 2002 (the “Rights Agreement”), as amended employee stock options outstanding on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentsuch date, there are no optionsissued, warrants reserved for issuance or other rightsoutstanding (i) shares of capital stock of or voting securities of the Company, agreements, arrangements (ii) securities of the Company convertible into or commitments exchangeable for shares of any character relating to the issued or unissued capital stock or voting securities of the Company, (iii) warrants, calls, options or other type rights to acquire from the Company, or other obligation of equity interests the Company to issue, any capital stock or voting securities of the Company or any Subsidiary (iv) restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or obligating the Company similar securities or any Subsidiary to issue or sell any shares of capital stock rights that are derivative of, or other type provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or voting securities of equity interests in, the Company or any Subsidiary. Section 4.03 of (the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: items in clauses (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; though (iv) being referred to collectively as the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The “Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessableSecurities”). There are no outstanding contractual obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which Company Securities. Neither the Company nor any of its Subsidiaries is bound obligating a party to any voting agreement with respect to the Company to accelerate the vesting voting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsSecurities.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Merger Agreement (CVS Caremark Corp), Merger Agreement (Longs Drug Stores Corp)
Capitalization. (a) The On the date hereof, the authorized capital stock of the Company consists of 100,000,000 Shares 20,000,000 shares of its Common Stock and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company the "Preferred Stock”"), consisting of 170,000 shares which have been designated as Series A Preferred Stock. As of December 7, 2007, (i) 38,012,846 Shares are The issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 consists of the Disclosure Letter sets forth the following information with respect to each Company Stock Option 9,982,989 shares of Common Stock, and Company Stock Award outstanding as no shares of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this AgreementPreferred Stock.
(b) The All the outstanding shares of capital stock of the Company has made available to Parent accurate have been duly and complete copies validly issued and are fully paid and non-assessable, and were issued in accordance with the registration or qualification requirements of all Company Stock Plans the Securities Act and any relevant state securities laws or pursuant to which valid exemptions therefrom. Upon issuance, sale and delivery as contemplated by this Agreement, and with respect to the Company has granted Second Closing Shares, approval by the Company Stock Options and Company Stock Awards that are currently outstanding and requisite vote of the form stockholders of all award agreements evidencing such awards. All the Company, the 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 nonassessable. There non-assessable shares of the Company, free and clear of any and all security interests, pledges, liens, charges, claims, options, restrictions on transfer, preemptive or similar rights, proxies and voting or other agreements, or other encumbrances of any nature whatsoever, except for those provided for herein and other than restrictions on transfer imposed by federal or state securities laws.
(c) Except for the conversion rights which attach to the warrants, options and convertible securities which are listed on Schedule 2.3, on the Closing Dates, there will be no outstanding contractual obligations shares of Common Stock or any other equity security of the Company issuable upon conversion, exchange or exercise of any security of the Company or any Subsidiary nor will there be any rights, options, calls or warrants outstanding or other agreements to repurchaseacquire shares of Common Stock nor will the Company be contractually obligated to purchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other personits outstanding shares. Except as set forth in Section 4.03(bon Schedule 2.3, (i) no stockholder of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company entitled to accelerate the vesting of any Company Stock Option as a result of the Offer preemptive or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding similar rights to subscribe for shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and the Company, (ii) all requirements set forth no stockholder of the Company has any rights, contractual or otherwise, to designate members of the Company's Board of Directors, other than in applicable contracts.
accordance with the DGCL, and (ciii) Each outstanding share of capital stock there are no stockholder, voting or other type agreements relating to the rights and obligations of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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's stockholders.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Micro Investment LLC), Securities Purchase Agreement (Micro Therapeutics Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 2,250,000,000 Shares and 5,000,000 750,000,000 shares of preferred stock, par value $0.001 0.0001 per share (“Company collectively, the Preferred Stock”"). As of December 7November 21, 20071997, (i) 38,012,846 531,667,515 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (iii) 67,000 no Shares are issued and held in the treasury of the Company. As of December 8, 2007, (iiii) all shares of Preferred Stock are held of record by Industrial Services Technologies, Inc., and (iv) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance issuable pursuant to options granted under any Company stock option plans. All the outstanding Company Stock Options shares of the Company's capital stock are duly authorized, validly issued, fully paid and Company Stock Awards granted pursuant to non-assessable. There are no bonds, debentures, notes or other indebtedness having general voting rights (or convertible into securities having such rights) ("Voting Debt") of the Company Stock Plans and the ESPP. As or any of the date of this Agreement, no shares of Company Preferred Stock are its subsidiaries issued and outstanding. Except as set forth in this Section 4.03above, and except for the Merger Option and the rights (the “Rights”i) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no shares of capital stock of the Company authorized, issued or outstanding and (ii) there are no existing options, warrants warrants, calls, pre-emptive rights, subscriptions or other rights, agreements, arrangements or commitments of any character character, relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary of its subsidiaries, obligating the Company or any of its subsidiaries to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any of its subsidiaries or securities convertible into or exchangeable for such shares or equity interests, or obligating the Company or any Subsidiary of its subsidiaries to issue grant, extend or sell enter into any shares of capital stock ofsuch option, warrant, call, subscription or other type of equity interests inright, the Company agreement, arrangement or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option commitment and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There there are no outstanding contractual obligations of the Company or any Subsidiary of its subsidiaries to repurchase, redeem or otherwise acquire any Shares Shares, or the capital stock of the Company, or any capital stock subsidiary or other type affiliate of equity interests of any Subsidiary the Company or to provide funds to, or to make any investment (in the form of a loan, capital contribution or otherwise) in, in any Subsidiary subsidiary or any other personentity.
(b) The Company owns all of the capital stock of Advanced Energy Corporation, a Delaware corporation, which in turn owns all of the capital stock of International Catalyst, Inc. a Nevada corporation ("Incat"). Except as set forth described in Section 4.03(b) the preceding sentence, the Company does not have any subsidiaries. All of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary of the Company's subsidiaries are beneficially owned by the Company, directly or indirectly, and all such shares have been validly issued and granted in material compliance with are fully paid and nonassessable and are owned as indicated above, free and clear of all liens, charges, claims or encumbrances (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts"Liens"), except that the capital stock of Incat is pledged to FINOVA Capital Corporation as security for a loan.
(c) Each outstanding share There are no 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 the capital stock of the Company or any of the subsidiaries.
(d) None of the Company or its subsidiaries is required to redeem, repurchase or otherwise acquire shares of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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 whatsoeverits subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Advanced Environmental Systems Inc), Merger Agreement (Philip Services Corp)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares (i) 53,000,000 shares of Company Common Stock of which, as of April 6, 1998, 25,206,204 shares were issued and 5,000,000 outstanding, all of which are duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights, and (ii) 1,000,000 shares of preferred stock, par value $0.001 0.01 per share share, of which none is issued but of which 500,000 shares have been designated as Series A Junior Participating Preferred Stock in connection with the rights (“the "Company Preferred Stock”)Rights") issued pursuant to the Company's Rights Agreement. As of December 7April 6, 20071998, (i) 38,012,846 Shares are issued and outstanding, all there were 2,452,016 shares of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are Company Common Stock reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Option Plans and 975,195 shares of Company Common Stock reserved for future issuance pursuant to outstanding Warrants. Except as set forth in Section 5.3(a) of the ESPP. As of Company's Disclosure Letter, between April 6, 1998 and the date of this Agreement, no shares of Company Preferred Common Stock are have been issued and outstandingby the Company. Except as set forth in this Section 4.035.3(a) of the Company's Disclosure Letter, and since April 6, 1998, the Company has not granted any options for, or other rights to purchase, shares of Company Common Stock.
(b) Except as set forth in Section 5.3(a), no shares of Company Common Stock are reserved for issuance, and, except for the Merger Option Warrants, the Company Rights, Company Stock Options, and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”)Restricted Stock, as amended on March 16, 2003, between listed in Section 5.3(b) of the Company and Mellon Investor Services, L.L.C., as rights agentCompany's Disclosure Letter, there are no options, warrants warrants, rights, convertible or other exchangeable securities, "phantom" stock rights, stock appreciation rights, stock-based performance units, contracts, agreements, commitments or arrangements obligating the Company (i) to offer, sell, issue or commitments grant any shares of, or any options, warrants or rights of any character relating kind to acquire any shares of, or any securities that are convertible into or exchangeable for any shares of, capital stock of the Company, (ii) to redeem, purchase or acquire, or offer to purchase or acquire, any outstanding shares of, or any outstanding options, warrants or rights of any kind to acquire any shares of, or any outstanding securities that are convertible into or exchangeable for any shares of, capital stock of the Company or (iii) to grant any Lien on any shares of capital stock of the Company.
(c) The authorized, issued and outstanding capital stock of, or unissued other equity interests in, each of the Company's Subsidiaries and the names and addresses of the holders of record of the capital stock or other type of equity interests of each such Subsidiary are set forth in Section 5.3(c) of the Company's Disclosure Letter. Except as set forth in Section 5.3(c) of the Company's Disclosure Letter, (i) the issued and outstanding shares of capital stock of, or other equity interests in, each of the Subsidiaries of the Company that are owned by the Company or any of its Subsidiaries have been duly authorized and are validly issued, and, with respect to capital stock, are fully paid and nonassessable, and were not issued in violation of any preemptive or similar rights of any past or present equity holder of such Subsidiary; (ii) all such issued and outstanding shares, or other equity AGREEMENT AND PLAN OF MERGER interests, that are indicated as owned by the Company or one of its Subsidiaries in Section 5.3(c) of the Company's Disclosure Letter are owned (A) beneficially as set forth therein and (B) free and clear of all Liens except as described therein; (iii) no shares of capital stock of, or other equity interests in, any Subsidiary of the Company are reserved for issuance, and there are no options, warrants, rights, convertible or exchangeable securities, "phantom" stock rights, stock appreciation rights, stock-based performance units, contracts, agreements, commitments or arrangements obligating the Company or any Subsidiary of its Subsidiaries (A) to issue offer, sell, issue, grant, pledge, dispose of or sell encumber any shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, any of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations Subsidiaries of the Company or (B) to redeem, purchase or acquire, or offer to purchase or acquire, any Subsidiary outstanding shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to repurchase, redeem or otherwise acquire any Shares shares of capital stock of, other equity interests in, or any outstanding securities that are convertible into or exchangeable for, any shares of capital stock of, or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary of the Subsidiaries of the Company or (C) to grant any Lien on any outstanding shares of capital stock of, or other person. equity interests in, any of the Subsidiaries of the Company.
(d) Except as set forth in Section 4.03(b5.3(d) of the Company's Disclosure Letter, the Company's Rights Agreement, and the Company Option Plans listed in Section 5.3(b) of the Company's Disclosure Letter, there are no voting trusts, proxies or other agreements, commitments or agreements understandings of any character to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound obligating with respect to the Company to accelerate the vesting voting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock of the Company or other type any of equity interests its Subsidiaries or with respect to the registration of each Subsidiary have been issued the offering, sale or delivery of any shares of capital stock of the Company or any of its Subsidiaries under the Securities Act. The Company has delivered to Parent a complete and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractscorrect copy of the Company's Rights Agreement, as amended to the date of this Agreement.
(ce) Each outstanding share of capital stock There are not any bonds, debentures, notes or other type Indebtedness of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company having the right to vote (or another Subsidiary free and clear convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders 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 whatsoeverCompany may vote ("Voting Company Debt").
Appears in 2 contracts
Sources: Merger Agreement (Tracor Inc /De), Merger Agreement (Gec Acquisition Corp)
Capitalization. (a) The authorized share capital stock of the Company consists is $167,378.40 divided into 120,000,000 Shares of 100,000,000 Shares and 5,000,000 shares of preferred stock, a par value $0.001 0.00139482 per share (“Company Preferred Stock”)share. As of December 7September 30, 20072013, (i) 38,012,846 87,428,902 Shares are issued and outstanding, all of which have been duly authorized and are validly issued, fully paid and nonassessable. As non-assessable, which number includes (A) 4,782,601 Shares that are either (1) Shares represented by ADSs held in brokerage accounts in the Company’s name or (2) Shares issued to Depositary in anticipation of December 10, 2007the vesting of the Company Share Awards, (iB) 67,000 28,268 Shares that have been clawed back by the Company from employee shareholders and are held by the Company pending cancellation and (C) 2,806,849 Shares are vested or unvested Company Restricted Shares and (ii) no Shares are held in the treasury of the Company. As of December 8, 2007, (i) Company and no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As any Subsidiary of the date of this Agreement, no shares of Company Preferred Stock are issued and outstandingCompany. Except as set forth in this Section 4.03, 4.03 and except for the Merger Option and the rights (the “Rights”Section 4.03(a) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Schedule, there are is no share capital or other equity interests in the Company, options, warrants warrants, convertible debt, other convertible instruments, stock appreciation rights, performance units, restricted stock units, contingent value rights, “phantom” stock units or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any share capital of or other equity interests in, the Company or any of its Subsidiaries or other rights, agreements, arrangements or commitments of any character to which the Company or any of its Subsidiaries is a party relating to the issued or unissued share capital stock or other type of equity interests of the Company or any Subsidiary of its Subsidiaries or obligating the Company or any Subsidiary of its Subsidiaries to issue or sell any shares of capital stock ofshare capital, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awardsits Subsidiaries. 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 nonassessablenon-assessable. There are no outstanding contractual obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests in, the Company or any of any Subsidiary 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 or any other Person. All outstanding Company Share Awards have been issued in compliance with all applicable Laws in all material respects, and all requirements set forth in the applicable Company Share Incentive Plan, and the per share exercise price of each Company Option requiring exercise was equal to or greater than the fair market value (within the meaning of Section 422 of the Code, in the case of each Company Option intended to qualify as an “incentive stock option”, and within the meaning of Section 409A of the Code, in the case of each other Company Option awarded to a U.S. person). Section 4.03(a) of the Company Disclosure Schedule sets forth, as of the date hereof, the aggregate amount of the outstanding Company Share Awards and the weighted average exercise price (if applicable) under each of the Company Share Incentive Plans. Each Company Share Award may, by its terms, be treated at the Effective Time as set forth in Section 3.04.
(b) Except as set forth in Section 4.03(b) of the Company Disclosure LetterSchedule, there are no commitments the outstanding share capital of, or agreements of any character to which other equity interests in, each Subsidiary owned directly or indirectly by the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessablenon-assessable, and each such share is owned by the Company or another Subsidiary (ii) free and clear of all security Encumbrances and (iii) not subject to any outstanding obligations of the Company or any of its Subsidiaries requiring the registration under any securities Law for sale of such share capital or other equity interests. The registered capital of each PRC Subsidiary has been fully and duly paid up within the prescribed time, liensand each PRC Subsidiary has successfully completed its annual inspection by the competent PRC Governmental Authorities in a timely manner since its establishment. Except for its Subsidiaries set forth in Section 4.01(b) of the Company Disclosure Schedule, claimsthe Company does not own or control, pledgesdirectly or indirectly, optionsany share capital of, rights or other equity interest in, or any interest convertible into or exercisable or exchangeable for any share capital of, or other equity interest in, any other Person. Neither the Company nor any of first refusalits Subsidiaries has any agreement, agreementsarrangement, limitations relationship or understanding with any Person that facilitates, entitles, obligates or compels or would reasonably be expected to facilitate, entitle, obligate or compel the Company or such Subsidiary to consolidate the financial conditions of any Person (other than the Subsidiaries set forth in Section 4.01(b) of the Company Disclosure Schedule).
(c) No bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into or exercisable for securities having the right to vote) on any matters on which shareholders of the Company may vote are issued or outstanding.
(d) Except as set forth in Section 4.03(d) of the Company Disclosure Schedule and the Voting Agreements, there are no voting trusts or other agreements to which the Company or any of its Subsidiaries is a party (i) restricting the transfer of, (ii) relating to the voting of, or (iii) requiring the registration under any securities Law for sale of, any Shares or any other share capital of, or other equity interests in, the Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoever.
Appears in 2 contracts
Sources: Merger Agreement (Chen Chris Shuning), Merger Agreement (Pactera Technology International Ltd.)
Capitalization. (a) The As of February 5, 1998, the authorized -------------- capital stock of the Company consists consisted of 100,000,000 Shares and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are 240,000,000 shares of Common Stock of which approximately 71.7 million shares were issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no 4,000,000 shares of Company Preferred Stock are of which approximately 82,813 shares were issued and outstanding. Except as set forth in this Section 4.03All such shares of Common Stock are, and except for the Merger Option and the rights (the “Rights”) all shares which may be issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no stock options, warrants or other rightsconvertible rights will be, agreementswhen issued and paid for in accordance with the respective terms thereof, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of 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, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessablenonassessable and free of any preemptive rights in respect thereof. There are no outstanding contractual obligations options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever granted or issued by the Company and relating to, or securities or rights granted or issued by the Company and convertible into, any shares of capital stock of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds toits subsidiaries, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to arrangements by which the Company or any of its subsidiaries is or may become bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding issue additional shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free any of its subsidiaries. There are no outstanding debt securities issued by the Company. There are no agreements or arrangements under which the Company or any of its subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act except in connection with the sale of the Company's 5% Cumulative Convertible Preferred Stock, Series 7 and clear the securities identified in its Amended Report on Form S-3, No. 333-40329 filed with the SEC on January 9, 1998. The Company has furnished to Investor true and correct copies of all security intereststhe Certificate of Incorporation and the Company's By-laws, liens, claims, pledges, options, rights of first refusal, agreements, limitations as in effect on the Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoeverdate hereof (the "Bylaws").
Appears in 2 contracts
Sources: Securities Purchase Agreement (Syquest Technology Inc), Securities Purchase Agreement (Syquest Technology Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares are issued and outstanding125,000,000 shares of Common Stock, all of which 49,533,950 shares are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As as of the date of this Agreement, no (ii) 5,000,000 shares of preferred stock, of which there are zero (0) shares outstanding as of the date of this Agreement, and (iii) 16,155,132 shares of capital stock are issuable and reserved for issuance pursuant to option plans or securities (other than outstanding shares of Common Stock) exercisable for, or convertible into or exchangeable for any shares of capital stock of the Company Preferred Stock comprised of (a) stock options to purchase 10,495,334 shares of the Company’s common stock under existing approved stock plans, (b) 4,028,822 shares reserved for future issuance under existing approved stock plans, and (c) warrants to purchase 1,630,976 shares of the Company’s common stock under outstanding warrant agreements. All shares of the Company’s issued and outstanding capital stock have been duly authorized, are validly issued and outstanding, and are fully paid and non-assessable and were issued in full compliance with applicable state and federal securities laws and rights of third parties. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant on Schedule 3.2 to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Schedule, there are no existing options, warrants warrants, calls, preemptive (or similar) rights, subscriptions or other rights, agreements, arrangements or commitments of any character relating obligating the Company to issue, transfer or sell, or cause to be issued, transferred or sold, any shares of the issued capital stock of the Company or unissued other equity interests in the Company or any securities convertible into or exchangeable for such shares of capital stock or other type of equity interests of interests, excluding the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or other type of equity interests inShares, the Company or any Subsidiary. Section 4.03 of Warrants and the Disclosure Letter sets forth the following information with respect Warrant Shares to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject be issued to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions Purchasers as contemplated by this Agreement.
(b) The Company has made available to Parent accurate , and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There there are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any shares of its capital stock or other type of securities or equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other personinterests. Except as set forth in Section 4.03(b) The issue and sale of the Disclosure LetterShares, there are no commitments or agreements of any character to which the Company is bound obligating Warrants and the Warrant Shares will not obligate the Company to accelerate issue or sell, pursuant to any pre-emptive right or otherwise, shares of Common Stock or other securities to any Person (other than the vesting Purchasers) and will not result in a right of any holder of Company Stock Option as a result of securities to adjust the Offer exercise, conversion, exchange or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all reset price under any outstanding shares of capital stock or other type securities. The issuance and sale of equity interests the Shares, the Warrants (and the Warrant Shares pursuant to the Warrants) will not result in the adjustment of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock the exercise, conversion, exchange or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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 reset price of any nature whatsoeveroutstanding security.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Curis Inc), Common Stock Purchase Agreement (Curis Inc)
Capitalization. (a) The authorized capital stock of the Company -------------- consists entirely of 100,000,000 Shares 10,000 shares of common stock, no par value, and 5,000,000 1,000 shares of preferred stock, no par value $0.001 per share (“Company Preferred Stock”). As value, of December 7, 2007, (i) 38,012,846 Shares which a total of 1,000 shares of common stock are issued and outstanding, all and of which 500 shares are validly issuedowned beneficially and of record by ▇.▇▇▇▇▇▇▇ and 500 shares are owned beneficially and of record by ▇.▇▇▇▇▇▇▇, fully paid and nonassessable. As no other entity or individual owns either beneficially or of December 10record, 2007, (i) 67,000 Shares are held in the treasury any other equity interest of the Company. As On the date of December 8this Agreement each Shareholder has, 2007and on the Closing Date each Shareholder will have, (i) no Shares are held by the Subsidiaries good and (ii) 6,628,083 Shares are reserved for future issuance pursuant marketable title to outstanding Company Stock Options and Company Stock Awards granted pursuant to that number of shares of capital stock of the Company Stock Plans set forth in this Section 2.3, free and clear of any and all Liens, which shares do and shall constitute collectively all of the ESPPoutstanding shares of the Company's capital stock. As of On the date of this Agreement, no there are no, and on the Closing Date, there will be no, options, warrants, calls, commitments, conversion privileges or preemptive or other rights or agreements outstanding to purchase any of shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued Company's capital stock or other type of equity interests any securities convertible into or exchangeable for shares of the Company or any Subsidiary Company's capital stock or obligating the Company to grant, extend, or enter into any Subsidiary such option, warrant, call, right, commitment, conversion privilege or other right or agreement. There is no voting agreement, right of first refusal or other restriction (other than normal restrictions on transfer under applicable federal and state securities laws) applicable to issue or sell any shares of the Company's outstanding securities. Each share of the Company's capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option has been duly authorized and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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, is fully paid and nonassessable. There are no outstanding contractual obligations , is not subject to any right of rescission, and has been offered, issued, sold and delivered by the Company in compliance with all registration or any Subsidiary to repurchase, redeem qualification requirements (or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(bapplicable exemptions therefrom) of the Disclosure Letterapplicable federal and state securities laws, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options other laws and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each agreements or instruments. The Company is not under any obligation to register under the Securities Act, any of its presently outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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 securities or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoeversecurities that may be subsequently issued.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dovebid Inc), Stock Purchase Agreement (Dovebid Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares shares of the Company Common Stock and 5,000,000 10,000,000 shares of preferred stock, no par value $0.001 per share (the “Company Preferred Stock”). As of December 7the close of business on April 11, 20072012, (iA) 38,012,846 Shares are 44,670,304 shares of Company Common Stock (other than treasury shares) were issued and outstanding, all of which are were validly issuedissued and fully paid, fully paid nonassessable and nonassessable. As free of December 10, 2007preemptive rights, (iB) 67,000 Shares are no shares of Company Common Stock were held in the treasury of the Company. As of December 8, 2007Company or by the Company Subsidiaries, (iC) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are 689,326 shares of Company Common Stock were reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans Plans, (D) 838,023 shares of Company Common Stock were issuable upon exercise of Company Options outstanding as of such date, and the ESPP(E) 335,714 shares of Company Common Stock were reserved for issuance and issuable upon exercise of Company Warrants outstanding as of such date. As of the date of this Agreementhereof, no shares of Company Preferred Stock are issued and or outstanding. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”3.2(a) issued pursuant to the Preferred Stock Rights Agreement, dated or as set forth in Section 3.2(a) of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agentDisclosure Schedule, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which the Company or any Company Subsidiary is a party or by which the Company or any Company Subsidiary is bound relating to the issued or unissued capital stock or other type of equity interests Equity Interests of the Company or any Subsidiary Company Subsidiary, or securities convertible into or exchangeable for such capital stock or other Equity Interests, or obligating the Company or any Company Subsidiary to issue or sell any shares of its capital stock or other Equity Interests, or securities convertible into or exchangeable for such capital stock of, or other type of equity interests Equity Interests in, the Company or any Company Subsidiary. Since April 11, 2012, the Company has not issued any shares of its capital stock, or securities convertible into or exchangeable for such capital stock or other Equity Interests, other than those shares of capital stock reserved for issuance as set forth in this Section 4.03 3.2(a) or Section 3.2(a) of the Company Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this AgreementSchedule.
(b) The Company has made available to previously provided Parent accurate with a true and complete copies list, as of all the date hereof, of (i) each outstanding Company Option, the number of shares of Company Common Stock Plans pursuant to which 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 share of Restricted Stock, the grant date, the vesting schedule thereof, and the name of the holder thereof. Except as set forth on Section 3.2(b) of the Company Disclosure Schedule, since December 31, 2011, the Company has granted not issued any Company Stock or Company Options under the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such awardsPlans. All Shares shares of Company Common Stock subject to issuance as aforesaidunder the Company Stock Plans, 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 paid, nonassessable and nonassessablefree of preemptive rights. There Each Company Option and each Restricted Stock award has been granted pursuant to the Company’s form of stock option agreement and form of restricted stock award agreement, respectively, true and complete copies of which have been made available to Parent prior to the date hereof.
(c) The Company has previously provided Parent with a true and complete 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 warrant agreements identified on Section 3.2(c) of the Company Disclosure Schedule, true and complete copies of which have been provided to Parent prior to the date hereof.
(d) Except as set forth on Section 3.2(d) of the Company Disclosure Schedule or pursuant to applicable securities Laws, there are no outstanding contractual obligations of the Company or any Company Subsidiary to (A) restricting the transfer of, (B) affecting the voting rights of, (C) requiring the repurchase, redeem redemption or otherwise acquire disposition of, or containing any Shares right of first refusal with respect to, (D) requiring the registration for sale of, or (E) granting any preemptive or antidilutive right with respect to, any shares of Company Common Stock or any capital stock of, or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) Equity Interests in, any Subsidiary the Company or any other personCompany Subsidiary. Except as set forth in on Section 4.03(b3.2(d) of the Company Disclosure LetterSchedule, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Company Subsidiary is duly authorized, validly issued, fully paid paid, nonassessable and nonassessablefree of preemptive rights and is owned, beneficially and each such share is owned of record, by the Company or another Company Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s or any such other Company Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoever. There are no outstanding contractual obligations of the Company or any Company Subsidiary to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Company Subsidiary or any other Person, other than guarantees by the Company of any indebtedness or other obligations of any wholly-owned Company Subsidiary.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Dreams Inc), Merger Agreement (Dreams Inc)
Capitalization. (a) The Except as set forth in Schedule 4.03(a) or as contemplated by this Agreement, the authorized capital stock of the Company 4Health consists of 100,000,000 Shares and 5,000,000 30,000,000 shares of preferred stock4Health Common Stock as of the date hereof, par value $0.001 per share (“Company Preferred Stock”). As of December 7, 2007, (i) 38,012,846 Shares which 11,911,658 shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares 50,000 shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries 4Health and (ii) 6,628,083 Shares up to 2,139,323 shares are reserved for future issuance pursuant to outstanding Company Stock Options stock options and Company Stock Awards granted pursuant to the Company Stock Plans warrants; and the ESPP. As of the date of this Agreement, no (ii) 5,000,000 shares of Company Preferred Stock series preferred stock, par value $1.00 per share, none of which are issued and outstanding. Except as set forth described in this Section 4.034.03 or Schedule 4.03(a) of the 4Health Disclosure Schedule, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as no shares of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests 4Health are reserved for any purpose. Each of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any outstanding shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary 4Health is duly authorized, validly issued, and, in the case of shares of capital stock, fully paid and nonassessable, and each has not been issued in violation of (nor are any of the authorized shares of capital stock of, or other equity interests in, such share entities subject to) any preemptive or similar rights created by statue, the charter or bylaws (or the equivalent organizational documents) of 4Health, or any agreement to which 4Health is a party or bound, and such outstanding shares or other equity interests owned by the Company or another Subsidiary 4Health are owned 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 4Health's voting rights, charges and or other encumbrances of any nature whatsoever.
(b) Except as set forth in Schedule 4.03(b)(i) to the 4Health Disclosure Schedule, there are no options, warrants or other rights (including registration rights), agreements, arrangements or commitments of any character to which 4Health is a party relating to the issued or unissued capital stock of 4Health or obligating 4Health to grant, issue or sell any shares of the capital stock of 4Health, by sale, leases, license or otherwise. Except as set forth in Schedule 4.03(b)(ii) to the 4Health Disclosure Schedule, there are no obligations, contingent or otherwise, of 4Health to (i) repurchase, redeem or otherwise acquire any shares of 4Health Common Stock or other capital stock of 4Health; or (ii) provide material funds to, or make any material investment in (in the form of a loan, capital contribution or otherwise), or provide any guarantee with respect to the obligations of any other person. Except as described in Schedule 4.03(b)(iii) to the 4Health Disclosure Schedule, 4Health (x) does not directly or indirectly own, (y) has not agreed to purchase or otherwise acquire or (z) does not holds any interest convertible into or exchangeable or exercisable for, 5% or more of the capital stock of any corporation, partnership, joint venture or other business association or entity. Except as set forth in Schedule 4.03(b)(iv) to the 4Health Disclosure Schedule, there are no agreements, arrangements or commitments of any character (contingent or otherwise) pursuant to which any person is or may be entitled to receive any payment based on the revenues or earnings or calculated in accordance therewith, of 4Health. Except as set forth in Schedule 4.03(b)(v), there are no voting trusts, proxies or other agreements or understanding to which 4Health is a party or by which 4Health is bound with respect to the voting of any shares of capital stock of 4Health.
(c) 4Health has made available to IN complete and correct copies of (i) its Long Term Stock Incentive Plan (The "4Health Option Plan") and the forms of options issued pursuant to the 4Health Option Plan, including all amendments thereto and (ii) all options and warrants that are not in the form specified under clause (i) above. Schedule 4.03(c) to the 4Health Disclosure Schedule sets forth a complete and correct list of all outstanding warrants and options, restricted stock or any other stock awards and shares of stock reserved for issuance under such stock options, the form thereof provided under clause (i) above. Schedule 4.03(c) to the 4Health Disclosure Schedule sets forth a complete and correct list of all outstanding warrants and options, restricted stock or any other stock awards (the "4Health Stock Awards") granted under the 4Health Option Plan or otherwise, setting forth as of the date hereof (i) the number of type of 4Health Stock Awards, (ii) the exercise price of each outstanding stock option or warrants, and (iii) the number of stock options and warrants presently exercisable.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (4health Inc), Agreement and Plan of Merger (4health Inc)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares shares of Common Stock and 5,000,000 1,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock”), of which any shares of Series A Preferred Stock, par value $0.01 per share, and any shares of Series B Preferred Stock, par value $0.01 per share, to be issued to the Investor pursuant to this Agreement will be authorized as of the Closing Date. As At the close of December 7business on March 31, 20072017, 2017 (the “Capitalization Date”), (i) 38,012,846 Shares are 24,898,375 shares of Common Stock were issued and outstanding, all (ii) 1,449,048 shares of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are Common Stock were held by the Subsidiaries Company in its treasury, (iii) 2,084,800 shares of Common Stock were reserved and (ii) 6,628,083 Shares are reserved available for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans Plan, (iv) 231,625 shares of Common Stock were subject to outstanding Options, and the ESPP. As of the date of this Agreement, (iv) no shares of Company Preferred Stock are were issued and or outstanding. Since the Capitalization Date through the date hereof, 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 dividends paid thereon, other than in connection with the vesting, settlement or exercise of the Options referred to above that were outstanding as of the Capitalization Date or as expressly contemplated by this Agreement, 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 the Company’s capital stock.
(b) Except as set forth described in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”3.02(a), as amended on March 16, 2003, between of the Company and Mellon Investor Services, L.L.C., as rights agentCapitalization Date, there are were no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any (i) outstanding shares of capital stock of, or other type of equity or voting interests in, the Company, (ii) outstanding securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interests in, the Company, (iii) outstanding options, warrants, stock appreciation rights, phantom stock rights, rights or other commitments or agreements to acquire from the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessable. There are no outstanding contractual obligations of obligate the Company or any Subsidiary to repurchaseissue, redeem or otherwise acquire any Shares or any capital stock of, or other type of equity or voting interests of any Subsidiary (or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwisevoting debt) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments securities convertible into or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding exchangeable for shares of capital stock of, or other type of equity or voting interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorizedin, validly issued, fully paid and nonassessable, 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.or
Appears in 2 contracts
Sources: Investment Agreement, Investment Agreement (Superior Industries International Inc)
Capitalization. (a) The authorized share capital stock of the Company consists of 100,000,000 Shares 35,000,000 shares of Company Common Stock and 5,000,000 shares of preferred stock, no par value $0.001 per share (“Company Preferred Stock”). As of December 7the close of business on May 14, 20072018 (the “Capitalization Date”), (i) 38,012,846 Shares are there were 22,870,967 shares of Company Common Stock issued and outstanding and no shares of Preferred Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable. As of December 10, 2007, (i) 67,000 Shares are held in the treasury No Company Subsidiary owns any capital stock of the Company. The Company Common Stock constitutes the only outstanding class of securities of the Company or the Company Subsidiaries registered under, or required to be registered under, the Securities Act. As of December 8the close of business on the Capitalization Date, 2007the Company had no shares of capital stock reserved for or otherwise subject to issuance, except for 1,157,346 Shares reserved for issuance under the Company Equity Plans, of which amount (i) no 649,846 Shares are held by were issuable upon the Subsidiaries settlement of Company RSU Awards and (ii) 6,628,083 507,500 Shares (assuming satisfaction of performance goals, which can only be satisfied at one level per Company PSU Award) were issuable upon the settlement of Company PSU Awards.
(b) Except as set forth in Section 3.02(a), as of the close of business on the Capitalization Date, no shares of capital stock or voting securities of, or other equity interests in, the Company are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to or outstanding. Since the Company Stock Plans and close of business on the ESPP. As of Capitalization Date through the date of this Agreement, no shares of Company Preferred Stock are RSU Awards or Company PSU Awards have been issued or granted and outstandingno Shares have been issued. Except as set forth in this Section 4.03, and except for the Merger Option and the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”3.02(a), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no options, warrants warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of the Company or any Company Subsidiary any character relating to the issued or unissued Shares or other equity interests or capital stock of the Company or any Company Subsidiary or any securities convertible into or exchangeable or exercisable for any such Shares, capital stock or other type equity interests, or any other rights or instruments that are linked in any way to the price of the Shares or any shares of capital stock or other equity interests of the Company or any Company Subsidiary or obligating the value of all or any part of the Company or any Company Subsidiary to issue or sell any (collectively, including the shares of capital stock or voting securities of, or other type of equity interests in, the Company or any Company Subsidiary. Section 4.03 , “Equity Interests”), or obligating the Company or any Company Subsidiary to issue, sell or grant any Equity Interests.
(c) There are no outstanding bonds, debentures, notes or other Indebtedness of the Disclosure Letter sets forth Company or any Company Subsidiary having the following information with respect right to each Company Stock Option and Company Stock Award outstanding as of December 8vote (or convertible into, 2007: (ior exchangeable for, securities having the right to vote) the state or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise or purchase price of the award, if any; (v) the date on any matter on which the award was granted; (vi) Company Shareholders or the applicable vesting schedule; (vii) the date on which the award expires; and (viii) whether the vesting, exercisability equityholders of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options and Company Stock Awards that are currently outstanding and the form of all award agreements evidencing such 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 nonassessableSubsidiary may vote. There are no outstanding contractual obligations under Contract or otherwise of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary Equity Interests, or to provide funds to, to or make any investment (in the form of a loan, capital contribution or otherwise) in, in any Company Subsidiary or any other personPerson. Except as set forth in Section 4.03(b) None of the Disclosure Letter, there are no commitments Company or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as Subsidiary is a result of the Offer party to any shareholders’ agreement, voting trust agreement or the Merger. All outstanding Sharesregistration rights agreement relating to any Equity Interests or any other Contract relating to disposition, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock voting or other type of equity interests of each Subsidiary have been issued and granted in material compliance dividends with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsrespect to any Equity Interests.
(cd) Each All issued and outstanding share of capital stock or other type of equity interests of each Subsidiary is Shares are duly authorized, validly issued, fully paid and nonassessable, and are not subject to and were not issued in violation of any preemptive (or similar) right, purchase option, call or right of first refusal or similar right. Each outstanding capital share, limited liability company interest, partnership interest or equity or similar interest of each such share Company Subsidiary is duly authorized, validly issued, fully paid and nonassessable and was issued free of preemptive (or similar) rights. Each outstanding capital share, limited liability company interest, partnership interest or equity or similar interest of each Company Subsidiary that is owned by the Company or another Company Subsidiary is owned free and clear of all security interestsLiens.
(e) All Company RSU Awards and Company PSU Awards are evidenced by award agreements in the forms that have been provided to Parent. Section 3.02(e) of the Company Disclosure Schedule sets forth a listing of all Persons (by employee number) who hold outstanding Company RSU Awards and Company PSU Awards as of the Capitalization Date, liensindicating, claimswith respect to each Company RSU Award or Company PSU Award, pledgesthe number of Shares subject thereto, options, rights the date of first refusal, agreements, limitations on grant or issuance and the Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoevervesting schedule.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Abaxis Inc), Merger Agreement (Zoetis Inc.)
Capitalization. (a) The authorized capital stock of the Company consists of 100,000,000 Shares and 5,000,000 50,000,000 shares of preferred Common Stock, par value $.01 per share; 25,000,000 shares of Series I non-voting common stock, par value $0.001 .01 per share (“Company share; and 5,000,000 shares of Preferred Stock”), par value $.01 per share. As of December 7, 2007the date hereof, (iA) 38,012,846 Shares are 24,342,799 shares of Company Common Stock were issued, of which 19,948,884 were issued and outstanding, which number of issued and outstanding shares includes all shares of restricted stock issued under any of the Options Plans, and 4,393,915 shares were held by the Company as treasury shares and all of which are were duly authorized, validly issued, fully paid and nonassessable. As nonassessable and not subject to preemptive rights; (B) 2,720,000 shares of December 10Series I non-voting common stock were issued, 2007, (i) 67,000 Shares but were not outstanding and are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are being held by the Subsidiaries and Company as treasury shares; (iiC) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are were issued and outstanding; (D) 2,218,187 shares of Company Common Stock were reserved for issuance upon the exercise of outstanding options set forth, on Schedule 4.8 hereto. Except as set forth in the Company Stock Option Agreement, in Schedule 4.2(a) or in this Section 4.03, and except for the Merger Option and the rights 4.2(a): (the “Rights”x) issued pursuant to the Preferred Stock Rights Agreement, dated as of June 27, 2002 (the “Rights Agreement”), as amended on March 16, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no other options, calls, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock or other type of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary of the Subsidiaries to issue issue, deliver or sell any shares of capital stock of, of or other type of equity interests in, in the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: (i) the state or country in which the recipient residesSubsidiaries; (iiy) the particular plan pursuant to which the award was granted; (iii) the number of Shares subject to the award; (iv) the exercise there are no bonds, debentures, notes or purchase price other indebtedness of the awardCompany having the right to vote (or convertible into, if any; (vor exchangeable for, securities having the right to vote) the date on any matters on which stockholders of the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expiresCompany may vote; and (viiiz) whether the vestingthere are no stockholders' agreements, exercisability of voting trusts or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies of all Company Stock Plans pursuant other agreements or understandings to which the Company has granted is a party or by which it is bound relating to the voting, registration or disposition of any shares of the capital stock of the Company Stock Options and (including any such agreements or understandings that may limit in any way the solicitation of proxies by or on behalf of the Company Stock Awards that are currently outstanding and from, or the form casting of all award agreements evidencing such awardsvotes by, the stockholders of the Company with respect to the Merger) or granting to any person or group of persons the right to elect, or to designate or nominate for election, a director to the Board of Directors. All Shares subject to issuance Except as aforesaidset forth in Schedule 4.2(a), 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 there are no programs in place or outstanding contractual obligations of the Company or any Subsidiary of the Subsidiaries (1) to repurchase, redeem or otherwise acquire any Shares or any capital stock or other type of equity interests of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as set forth in Section 4.03(b) of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock of the Company or other type (2) to vote or to dispose of equity interests any shares of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractsthe capital stock of any of the Subsidiaries.
(cb) Each All the outstanding share of capital stock or other type of equity interests of each of the Subsidiaries owned by the Company or a Subsidiary is duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights and, and each such share except as set forth in Schedule 4.1, is owned by the Company or another a Subsidiary free and clear of all security interestsany Encumbrance, liensexcept for Encumbrances that do not, claimsindividually or in the aggregate, pledgesmaterially interfere with the ownership, business or operations of the Company and such Subsidiary. There are no existing options, calls, warrants or other rights relating to the acquisition of first refusalissued or unissued capital stock or other equity interests or securities of any Subsidiary. Except (i) for the Subsidiaries, agreements(ii) as set forth in Schedule 4.2(b) and (iii) with respect to such interests that individually have a fair market value of less than $1.0 million and in the aggregate have a fair market value of less than $1.5 million, limitations on the Company’s Company does not directly or indirectly own any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for, any equity or similar interest in any other corporation, partnership, joint venture or other business association or entity. Except as set forth in Schedule 4.2(b) and with respect to commitments that are individually less than $500,000 and in the aggregate are less than $1.5 million, neither the Company nor any Subsidiary is under any current or prospective obligation to make a capital contribution or investment in or loan to, or to assume any liability or obligation of, any corporation, partnership, joint venture or the business association or entity other than a wholly owned Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoever.
Appears in 2 contracts
Sources: Merger Agreement (Securitas Acquisition Corp), Merger Agreement (Burns International Services Corp)
Capitalization. (a) The authorized capital stock of the Company Target consists of 100,000,000 Shares 35,000,000 shares of common stock, par value $0.01 per share and 5,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company "Target Preferred Stock”"). As of December 7January 15, 20071999, (i) 38,012,846 Shares are 9,985,350 shares of Target Common Stock and no shares of Target Preferred Stock were issued and outstanding. Except for the issuance of shares of Target Common -6- 11 Stock pursuant to the options referred to in clause 4.2(c) below, since September 30, 1998, no shares of Target Common Stock or Target Preferred Stock have been issued. All the outstanding shares of Target Common Stock have been validly issued and are fully paid and non-assessable.
(b) Neither Target nor Target Parent is a party to, nor is aware of, any voting agreement (other than the Voting Agreement and Irrevocable Proxy), voting trust or similar agreement or arrangement relating to any class or series of its capital stock, or any agreement or arrangement providing for registration rights with respect to any capital stock or other securities of Target, other than the registration rights in the Registration Rights Agreement dated as of May 14, 1996 between Target and Target Parent which shall be terminated on or prior to the Closing Date.
(c) As of the date hereof, there were outstanding options to purchase an aggregate of 862,225 shares of Target Common Stock under the Target Corporation 1996 Equity Incentive Plan (the "Target Stock Option Plan"), all of which are validly issued, fully paid and nonassessableset forth on Schedule 4.2(c). As of December 10, 2007, (i) 67,000 Shares are held in the treasury of the Company. As of December 8, 2007, (i) no Shares are held by the Subsidiaries and (ii) 6,628,083 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and Company Stock Awards granted pursuant to the Company Stock Plans and the ESPP. As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except Other than as set forth in this Section 4.034.2 and on Schedule 4.2(c), there are not now, and except for at the Merger Option and the rights Effective Time there will not be, any (the “Rights”i) issued shares of capital stock or other equity securities of Target outstanding other than Target Common Stock issuable pursuant to the Preferred Stock Rights Agreement, dated as exercise of June 27, 2002 (the “Rights Agreement”stock options described in this Section 4.2(c), as amended on March 16(ii) other outstanding awards under the Target Stock Option Plan, 2003, between the Company and Mellon Investor Services, L.L.C., as rights agent, there are no or (iii) outstanding options, warrants or other rightswarrants, agreementsscrip, arrangements rights to subscribe for, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, shares of any class of capital stock of Target, or contracts, understandings or arrangements to the issued which Target is a party, or unissued by which it is or may be bound, to issue additional shares of its capital stock or other type options, warrants, scrip or rights to subscribe for, or securities or rights convertible into or exchangeable for, any additional shares of equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any its capital stock.
(d) Except as set forth on Schedule 4.2(d)(i), all outstanding shares of capital stock of, or other type of equity interests in, the Company or any Subsidiary. Section 4.03 of the Disclosure Letter sets forth the following information with respect to each Company Stock Option and Company Stock Award outstanding as of December 8, 2007: Target's Subsidiaries (i) the state are owned by Target or country in which the recipient resides; (ii) the particular plan pursuant to which the award was granted; (iii) the number a wholly owned Subsidiary of Shares subject to the award; (iv) the exercise or purchase price of the awardTarget, if any; (v) the date on which the award was granted; (vi) the applicable vesting schedule; (vii) the date on which the award expires; free and (viii) whether the vesting, exercisability of or right to repurchase of such award will be accelerated in any way by the transactions contemplated by this Agreement.
(b) The Company has made available to Parent accurate and complete copies clear of all Company Stock Plans pursuant to which the Company has granted the Company Stock Options liens, charges, encumbrances, adverse claims and Company Stock Awards that options of any nature, (B) were duly authorized and validly issued and are currently outstanding and the form of all award agreements evidencing such 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 nonassessable, and (C) have not been issued in violation of any preemptive rights. There are no not now, and at the Effective Time there will not be, any outstanding options, warrants, scrip, rights to subscribe for, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, shares of any class of capital stock of any Subsidiary of Target, or contracts, understandings or arrangements to which Target or any Subsidiary of Target is a party, or by which any of them is or may be bound, to issue additional shares of its capital stock or options, warrants, scrip or rights to subscribe for, or securities or rights convertible into or exchangeable for, any additional shares of capital stock of any Subsidiary of Target. There are not now, and at the Effective Time there will not be, any outstanding contractual obligations of the Company Target or any Subsidiary of Target to repurchase, redeem or otherwise acquire any Shares or any outstanding shares of capital stock or other type of equity ownership interests of any such Subsidiary or or, except as set forth on Schedule 4.2(d)(ii), to provide funds to, to or make any investment (in the form of a loan, capital contribution or otherwise) in, in any such Subsidiary or any other personentity.
(e) Except for the Subsidiaries of Target set forth on Schedule 4.2(e) hereto, Target does not, directly or indirectly, own of record or beneficially, or have the right or obligation to acquire, any outstanding securities or other interest in any corporation, partnership, joint venture or other entity.
SECTION 4.3. Corporate Authority Relative to this Agreement; No Violation. Each of Target and Target Parent has the corporate power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the respective Boards of Directors of Target and Target Parent and, except for the approval and adoption of this Agreement and the Merger by the stockholders of Target, no other corporate proceedings on the part of Target or Target Parent are necessary to authorize this Agreement and the transactions contemplated hereby. The Board of Directors of Target has determined that the transactions contemplated by this Agreement are in the best interest of Target and its stockholders. This Agreement has been duly and validly executed and delivered by each of Target and Target Parent and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, this Agreement constitutes a valid and binding agreement of each of Target and Target Parent, enforceable -7- 12 against Target and Target Parent in accordance with its terms (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, or by principles governing the availability of equitable remedies). Except as set forth on Schedule 4.3, neither Target nor Target Parent is subject to or obligated under any charter, bylaw or contract provision or any licenses, franchise or permit, or subject to any order or decree, which would be breached or violated by its executing or carrying out this Agreement. Other than in Section 4.03(bconnection with or in compliance with the provisions of Nevada Law, the Securities Act of 1933, as amended (the "Securities Act"), the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇itrust Improvements Act of 1976, as amended (the "HSR Act") (collectively, the "Target Required Approvals"), no authorization, consent or approval of, or filing with, any governmental body or authority is necessary for the consummation by Target of the Disclosure Letter, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Offer or the Merger. All outstanding Shares, all outstanding Company Stock Options and Company Stock Awards and all outstanding shares of capital stock or other type of equity interests of each Subsidiary have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws and (ii) all requirements set forth in applicable contractstransactions contemplated by this Agreement.
(c) Each outstanding share of capital stock or other type of equity interests of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, 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.
Appears in 2 contracts
Sources: Merger Agreement (Tech Sym Corp), Merger Agreement (Core Laboratories N V)