Equity Capitalization. As of the date of completion of the Merger, the authorized capital stock of BioPharmX consists of (i) 450,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and (i) Except as disclosed in Schedule A1(i)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX or any of the BioPharmX Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound to redeem a security of BioPharmX or any of the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the MergerSeptember 30, 2012, the authorized capital stock of BioPharmX consists the Issuer consisted of (i) 450,000,000 149,000,000 shares of BioPharmX Common StockStock and 1,000,000 shares of preferred stock. As of September 30, 2012, (a) 87,232,094 shares of which as of the date of completion of the Merger, [·] are Common Stock were issued and outstanding, [·] ; and (b) 14,144,330 shares are of Common Stock were reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, outstanding Options or Convertible Securities (including 12,013,648 shares of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are Common Stock reserved for future grant under equity incentive plans). As of September 30, 2012, zero shares of preferred stock were issued and outstanding. All of such outstanding shares have been, or upon issuance pursuant to securities (other than the aforementioned options and
(i) will be, validly issued and are fully paid and nonassessable. Except as set forth above in this Section 3.12, or as disclosed in Schedule A1(i)(i), hereto, the SEC Documents:
(a) none of BioPharmX’s or any BioPharmX Subsidiarythe Issuer’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiary; the Issuer;
(iib) except as disclosed in Schedule A1(i)(ii), there are no outstanding optionsOptions, warrants, scripConvertible Securities, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, to any capital stock of BioPharmX or any of the BioPharmX SubsidiariesIssuer, or contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries Issuer is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries; Issuer;
(iiic) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries Issuer is obligated to register the sale of any of their securities under the 1933 Securities Act; ;
(vid) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX or any of the BioPharmX Subsidiaries Issuer which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries Issuer is or may become bound to redeem a security of BioPharmX or any of the BioPharmX Subsidiaries; Issuer;
(viie) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesWarrants; and
(viiif) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has the Issuer does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities . The Issuer has furnished or obligations required made available to be disclosed in the SEC Documents which are not so disclosed in the SEC DocumentsGE upon GE’s request, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. Truetrue, correct and complete copies of the BioPharmX Certificate certificate of Incorporation incorporation and BioPharmX Bylaws, bylaws of the Issuer and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Options and Convertible Securities and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Merger, the The authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 58,000,000 shares of BioPharmX Common Stock, par value $0.02 per share, of which as on February 23, 2024 (the “Capitalization Date”) and prior to the issuance of the date of completion of the MergerPurchased Shares, [·] (A) 28,039,525 Common Shares are issued and outstanding, [·] shares (B) 4,196,451 Common Shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock Company’s equity incentive plans and [·] shares are subject to outstanding BioPharmX restricted stock units(collectively, and [·] shares the “Company Equity Plans”); (C) an aggregate of 8,432,404 Common Shares are reserved for issuance pursuant in connection with conversions of the Company’s 1.500% Convertible Senior Notes due 2027 and 2.875% Convertible Senior Notes due 2026 (collectively, the “Convertible Notes”), to the extent that holders elect to convert the notes and the Company elects to satisfy conversions of the notes through physical settlement; and (D) an aggregate of 503,975 Common Shares are reserved for issuance upon the exercise of warrants issued to PAR Act III, LLC, and (ii) 1,000,000 shares of preferred stock, par value $0.02 per share, none of which are issued and outstanding). Since the Capitalization Date and through the date of this Agreement, other than those in connection with the ▇▇▇ Acquisition Transaction, the TASK Acquisition Transaction, and the Transaction Documents, no Company Equity Plan has been amended or otherwise modified and no Common Shares, options to purchase Common Shares, restricted stock units or any warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the Company or any of its Subsidiaries to issue or to sell any shares of capital stock or other securities of the Company or any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, valued by reference to, or giving any Person a right to subscribe for or acquire, any securities of the Company or any of its Subsidiaries have been repurchased or redeemed or issued (other than with respect to the aforementioned exercise, vesting or settlement of the options and
(i) Except as disclosed to purchase Common Shares, restricted stock and restricted stock units outstanding prior to the Capitalization Date and pursuant to the terms of the applicable Company Equity Plan in Schedule A1(i)(ieffect on the Capitalization Date), heretoand no Common Shares have been issued or reserved for issuance and no foregoing rights have been granted, none except pursuant to the terms of BioPharmX’s the applicable Company Equity Plan in effect on the Capitalization Date or the Convertible Notes. All of such issued and outstanding shares are, or upon issuance will be validly issued, fully paid and nonassessable and have been issued in compliance with all federal and state securities laws. None of the outstanding Common Shares prior to the issuance of the Purchased Shares were issued in violation of any BioPharmX Subsidiary’s capital stock is subject to preemptive rights, rights of first refusal or any other similar rights to subscribe for or any liens purchase securities of the Company. Except as set forth above in this clause (l) or encumbrances suffered or permitted as contemplated by BioPharmX or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii)the Transaction Documents, the ▇▇▇ Transaction Documents, and the TASK Transaction Documents, there are no outstanding (x) options, warrants, scrippreemptive rights, rights of first refusal or other rights to subscribe topurchase from the Company or any of its Subsidiaries, calls (y) agreements, contracts, arrangements or commitments other obligations of the Company or any character whatsoever relating to, of its Subsidiaries to issue or (z) other rights to convert into or exchange any securities or rights convertible into, or exercisable or exchangeable for, any in the case of each of clauses (x) through (z), shares of capital stock of BioPharmX or other ownership or equity interests in the Company or any of its Subsidiaries. Except as otherwise provided in the BioPharmX SubsidiariesRegistration Rights Agreement, or contractsthe ▇▇▇ Transaction Documents, commitments, understandings or arrangements by which BioPharmX or any of and the BioPharmX Subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), TASK Transaction Documents there are no outstanding debt rights or obligations of the Company to register with the Commission or obligations to repurchase or redeem any of its equity securities. The rights, notespreferences, credit agreementsprivileges, credit facilities and restrictions of the Common Stock are as stated in the Charter Documents. Neither the Company nor any of its Subsidiaries is a party to any voting agreement or similar agreement with respect to the capital stock or other agreements, documents or instruments evidencing Indebtedness securities of BioPharmX the Company or any of the BioPharmX Subsidiaries or by which BioPharmX or any its Subsidiaries. The descriptions of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv)Company’s stock option, there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (stock bonus and other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX or any of the BioPharmX Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound to redeem a security of BioPharmX or any of the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylawsarrangements, and the terms options or other rights granted thereunder, set forth in the most recent SEC Documents filed prior to the date of this Agreement fairly present in all securities convertible intomaterial respects all material information regarding such plans, or exercisable or exchangeable forarrangements, BioPharmX Common Stock options and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsrights.
Appears in 1 contract
Sources: Securities Purchase Agreement (Par Technology Corp)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 150,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] are 72,836,212 issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 1,902,000 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Notes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (iii) 50,000,000 shares of preferred stock, of which 40,000,000 are issued and outstanding. 75,261,788 shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 37,009,731 shares of the Company’s issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, other than those beneficial owners identified in the Company’s Form 10-K for the fiscal year ended September 30, 2008, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Equivalents, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws). Except as disclosed in Schedule A1(i)(i), hereto, 3(r) and as expressly contemplated by the terms of the Transaction Documents: (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Certificate Company’s Articles of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Magnum dOr Resources Inc)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 250,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerhereof, [·] 31,350,877 shares are issued and outstanding, [·] 3,113,607 shares are reserved for issuance upon exercise of outstanding options issued under the Company’s equity incentive plans (the “Plans”), 822,227 shares are reserved for issuance upon settlement of outstanding restricted stock units issued under the Plans, 2,350,574 shares are reserved for issuance pursuant to BioPharmXawards that may be made under the Company’s stock option and purchase plansPlans, of which [·] 4,231,288 shares are subject reserved for issuance upon exercise of outstanding warrants to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock unitspurchase Common Stock, and [·] no shares are reserved for issuance pursuant to any other securities exercisable or exchangeable for, or convertible into, shares of Common Stock (other than the aforementioned options andoptions, restricted stock units, plans or warrants, or the Warrants) and (ii) 20,000,000 shares of preferred stock, par value $0.00001 per share, none of which are issued and outstanding. The Company does not maintain an employee stock purchase plan. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 5,761,675 shares of the Company’s issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the 1▇▇▇ ▇▇▇) of the Company or any of its Subsidiaries.
(i) Except as disclosed in Schedule A1(i)(i3(p)(i), hereto, none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii3(p)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities 3(p)(iii) or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of pursuant to the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v)Registration Rights Agreement, there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (viiv) except as disclosed in Schedule A1(i)(vi3(p)(iv), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (viiv) except as disclosed in Schedule A1(i)(vii3(p)(v), there are no securities or instruments containing anti-anti- dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivi) except as disclosed in Schedule A1(i)(viii3(p)(vi), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixviii) except as disclosed in Schedule 3(p)(viii), neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do would not or could not reasonably be expected to have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Company’s Fourth Amended and Restated Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ardsley Advisory Partners)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists solely of (i) 450,000,000 150,000,000 shares of BioPharmX Common Stock, of which as which, 4,922,412 shares of the date of completion of the Merger, [·] Common Stock are issued and outstanding, [·] outstanding and 227,859 shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Convertible Securities (as defined below) (other than the aforementioned options and
Preferred Shares and the Warrants); (iii) 15,000 shares of Series B preferred stock, of which zero shares are issued and outstanding; (iii) 5,000 shares of Series C Convertible Preferred Stock, par value $0.0001 per share (the “Series C Preferred Stock”), of which zero shares are issued and outstanding; and (iv) 5,500 shares of Series D Convertible Preferred Stock, par value $0.0001 per share (the “Series D Preferred Stock”), of which 5,500 shares are issued and outstanding. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as disclosed in Schedule A1(i)(i)the SEC Documents, hereto, (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s amended and restated bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities Convertible Securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 shares of BioPharmX Common Stock40,000,000 Ordinary Shares, of which as of the date of completion of the Mergerwhich, [·] 16,150,077 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, outstanding (1,272,244 of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans represented by ADSs) and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 6,534,385 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Warrants) exercisable or exchangeable for, or convertible into, Ordinary Shares. As of the date hereof, no shares of preferred stock have been authorized. 446,827 Ordinary Shares are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 1,654,649 shares of the Company's issued and outstanding Ordinary Shares on the date hereof are as of the date hereof owned by Persons who are "affiliates" (ias defined in Rule 405 of the ▇▇▇▇ ▇▇▇) of the Company or any of its Subsidiaries. Except as disclosed in Schedule A1(i)(i), hereto, 3(q) (i) none of BioPharmX’s the Company's or any BioPharmX Subsidiary’s 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii3(q)(iii), other than trade payables in the ordinary course of business, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv3(q)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), ) except as disclosed in Schedule A1(i)(v3(q)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi3(q)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s the Company's or the BioPharmX its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished or made available to the Buyers true, correct and complete copies of the BioPharmX Certificate Company's Articles of Incorporation Association, as amended and BioPharmX Bylawsas in effect on the date hereof (the "Articles of Association"), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Ordinary Shares and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Can-Fite BioPharma Ltd.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized share capital stock of BioPharmX the Company consists of (i) 450,000,000 shares of BioPharmX 500,000,000 Common StockShares, of which as of the date of completion of the Mergerhereof, [·] 4,094,589 are issued and outstanding, [·] 169,000 shares are reserved for issuance pursuant to BioPharmXthe Company’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 2,863,317 shares are reserved for issuance pursuant to securities (other than the aforementioned options andand Warrants) exercisable or exchangeable for, or convertible into, Common Shares and no preferred shares. No Common Shares are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued, fully paid and nonassessable. 45,826 of the Company’s issued and outstanding Common Shares on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding Common Shares (calculated based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws).
(i) Except as disclosed in Schedule A1(i)(i), heretothe SEC Documents, none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii)the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in the SEC Documents or in Schedule A1(i)(iii3(q)(i), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv)as disclosed in the SEC Documents, there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in the SEC Documents or in Schedule A1(i)(v3(q)(ii), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi)the SEC Documents, there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii)the SEC Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii)the SEC Documents, neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation Company’s Memorandum And Articles Of Association, as amended and BioPharmX Bylawsas in effect on the date hereof (the “Amended And Restated Memorandum And Articles Of Association”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Shares and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tantech Holdings LTD)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 100,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerhereof, [·] 33,998,442 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 1,986,257 shares are reserved for issuance pursuant to securities granted or that may be granted that are (other than the aforementioned options and
Preferred Shares) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 10,000,000 shares of Preferred Stock of which, as of the date hereof, 55,000 Existing Preferred Shares are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as set forth on Schedule 3(r): (i) Except as disclosed in Schedule A1(i)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiary’s the Company's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (ii) except as disclosed in Schedule A1(i)(ii)the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (viiv) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (viiv) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivi) except as disclosed in Schedule A1(i)(viii)the SEC Documents, neither BioPharmX nor any BioPharmX Subsidiary has the Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ixvii) neither BioPharmX nor any of the BioPharmX Company and its Subsidiaries have any no liabilities or obligations required to be disclosed in the SEC Documents which are but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s the Company's or the BioPharmX its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could would not have a BioPharmX Material Adverse Effect. TrueIncluded in the SEC Documents are true, correct and complete copies of the BioPharmX Company's Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the MergerClosing, the authorized capital stock of BioPharmX consists the Company shall consist of (i) 450,000,000 844,828,987 shares of BioPharmX shares of the Common Stock, of which as of the date of completion of the MergerMarch 5, [·] 2013, 480,963,485 are issued and outstanding. In addition, [·] shares are reserved for issuance pursuant to BioPharmX’s as of March 5, 2013, the Company has four series of preferred stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and
designated as follows: (i) Except 10,000 shares have been designated as disclosed in Schedule A1(i)(i), heretoSeries A Preferred Stock, none of BioPharmX’s which are issued or any BioPharmX Subsidiaryoutstanding; (ii) 5,000,000 shares have been designated as Series B Preferred Stock, 3,000,000 of which are issued and outstanding; (iii) 15,000,000 shares have been designated as Series C Preferred Stock, none of which are issued or outstanding; and (iv) 13,000,000 shares of Series D Preferred Stock, none of which are issued or outstanding. In addition, the Company has issued a warrant for the purchase of 20,000,000 shares of the Common Stock. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. As of the Closing of this Agreement, except as disclosed this Agreement and in the SEC Documents, (i) none of the Company’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, loan or credit facilities or other agreements, documents or instruments evidencing Indebtedness Indebtedness, as defined in Paragraph 4(r), of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act; (viv) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to purchase, repurchase, retire or redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (viivi) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securitiesshares of the Common Stock; (viiivii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixviii) neither BioPharmX nor any of the BioPharmX Company and its Subsidiaries have any no liabilities or obligations required to be disclosed in the SEC Documents which are but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyer through the SEC’s ▇▇▇▇▇ system, true, correct and complete copies of the BioPharmX Certificate Company’s Articles of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “ Articles of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “ Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of shares of the Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Global Earth Energy, Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 100,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 57,344,870 are issued and outstandingoutstanding and, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plansexcept as disclosed in the SEC Documents, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] no shares are reserved for issuance pursuant to securities (other than the aforementioned options andPreferred Shares) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 10,000,000 shares of preferred stock, of which none are issued and outstanding. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. 28,571,040 shares of the Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. Except as disclosed in the SEC Documents, to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws).
(i) Except as disclosed in Schedule A1(i)(i), heretothe SEC Documents, none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances Liens suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed set forth in Schedule A1(i)(ii)the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed set forth in Schedule A1(i)(iii)the SEC Documents, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing material Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed set forth in Schedule A1(i)(iv)the SEC Documents, there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), ) except as disclosed set forth in Schedule A1(i)(v)the SEC Documents, there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to this Agreement); (vi) except as disclosed set forth in Schedule A1(i)(vi)the SEC Documents, there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed set forth in Schedule A1(i)(vii)the SEC documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed set forth in Schedule A1(i)(viii)the SEC documents, neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date hereof (the “Certificate of Incorporation”), and the terms of all securities convertible intoCompany’s bylaws, or exercisable or exchangeable for, BioPharmX Common Stock as amended and as in effect on the material rights of date hereof (the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents“Bylaws”).
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX Parent consists of (i) 450,000,000 5,639,000 shares of BioPharmX undesignated capital stock, $0.001 par value per share, none of which is issued and outstanding; (ii) 4,361,000 shares of Series C Convertible Preferred Stock, $0.001 par value per share, none of which is issued and outstanding; and (iii) 40,000,000 shares of Common Stock, of which which, as of the date of completion of the Mergerhereof, [·] 7,351,994 shares are issued and outstanding, [·] (other than the Closing Shares), 919,900 shares are treasury stock, 617,250 shares are reserved for issuance pursuant to BioPharmXParent’s stock option and purchase plansplans listed in Schedule 3(r), of which [·] 300,000 shares are reserved for issuance upon the exercise of warrants subject to outstanding BioPharmX options granted under the BioPharmX stock plans warrant agreements listed in Schedule 3(r) and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 3,137,857 shares are reserved for issuance pursuant to securities senior subordinated convertible notes of Parent convertible into shares of Common Stock of Parent (other than subject to increase to cover the aforementioned options and
(ianti-dilution provisions associated therewith) described in Schedule 3(r). As of the date hereof, the authorized capital stock of the Company consists of 1,000 shares of common stock, no par value per share, of which, as of the date hereof, 100 shares are issued and outstanding. All of such outstanding shares of Parent and the Company have been validly issued and are fully paid and nonassessable. Except as disclosed in the SEC Documents or Schedule A1(i)(i), hereto, 3(r): (i) none of BioPharmXParent’s or any BioPharmX Subsidiarythe Company’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX Parent or any BioPharmX Subsidiarythe Company; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of BioPharmX Parent or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX Parent or any of the BioPharmX its Subsidiaries is or may become bound to issue additional share capital stock of BioPharmX Parent or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of BioPharmX Parent or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX Parent or any of the BioPharmX its Subsidiaries or by which BioPharmX Parent or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with BioPharmX Parent or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX Parent or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their its securities under the 1933 ActAct (except the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX Parent or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX Parent or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX Parent or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX Parent nor any BioPharmX Subsidiary of its Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Parent and its Subsidiaries have any no liabilities or obligations required to be disclosed in the SEC Documents which are but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXParent’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effectbusinesses. TrueSchedule 3(r) contains true, correct and complete copies of (i) the BioPharmX Certificate Company’s Articles of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (“the Company’s Articles of Incorporation”), (ii) the Company’s Bylaws, as amended and as in effect on the terms date hereof (“the Company’s Bylaws”), (iii) Parent’s Articles of all securities convertible intoIncorporation, or exercisable or exchangeable foras amended and as in effect on the date hereof (“Parent’s Articles of Incorporation”), BioPharmX Common Stock and (iv) Parent’s Bylaws, as amended and as in effect on the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsdate hereof (“Parent’s Bylaws”).
Appears in 1 contract
Equity Capitalization. (a) As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 1,200,000,000 shares of BioPharmX Common Stockcapital stock, of which as 1,000,000,000 shares are designated common stock, par value $0.0001 per share, and 200,000,000 shares are undesignated preferred stock. As of the date hereof, the Company had 12,896,146 shares of completion common stock outstanding and no shares of preferred stock outstanding.
(b) The Common Shares are registered pursuant to Section 12(b) of the Merger, [·] Exchange Act and are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted currently listed on a Principal Market under the BioPharmX stock plans and [·] shares are subject trading symbol “GWH.” The Company has taken no action designed to, or likely to outstanding BioPharmX restricted stock unitshave the effect of, and [·] shares are reserved for issuance pursuant to securities (other than terminating the aforementioned options andregistration of the Common Shares under the Exchange Act, delisting the Common Shares from the Principal Market, nor has the Company received any notification that the Commission or the Principal Market is contemplating terminating such registration or listing. To the Company’s knowledge, it is in compliance with all applicable listing requirements of the Principal Market.
(ic) Except as disclosed in Schedule A1(i)(i), hereto, the SEC Documents: (A) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s shares, interests or capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; Subsidiary; (iiB) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional shares, interests or capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries; its Subsidiaries; (iiiC) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; Securities Act (viexcept pursuant to this Agreement); (D) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiaries; its Subsidiaries; (viiE) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution antidilution or similar provisions that will be triggered by the issuance of the Securities; Shares; and (viiiF) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has entered into any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC DocumentsVariable Rate Transaction.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 1,000,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 158,121,566 shares are issued and outstanding, [·] outstanding and 15,623,425 shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Convertible Securities (as defined below) (other than the aforementioned options and
Notes and the Warrants) and (iii) 10,000,000 shares of preferred stock, of which, 626,667 have been designated as Series B Preferred Stock and are issued and outstanding. 162,500 shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. 25,912,911 shares of the Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. Except as disclosed in Schedule A1(i)(i4(u), hereto, (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights rights, restricted stock units or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the MergerJune 30, 2011, the authorized capital stock of BioPharmX the Borrower consists of (i) 450,000,000 149,000,000 shares of BioPharmX Common Stock, Stock and 1,000,000 shares of which as preferred stock. As of the date hereof, no shares of completion of the Merger, [·] preferred stock are issued and outstanding. As of June 30, [·] 2011, (x) 70,317,747 shares are of Common Stock were issued and outstanding, (y) 14,349,383 shares were reserved for issuance pursuant to BioPharmXthe Borrower’s stock option and purchase plans, of which [·] equity incentive plans (including 10,802,152 shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities outstanding options and 3,547,231 shares reserved for future grant), and (other than the aforementioned options and
(iz) 17,130,682 shares reserved for issuance pursuant to outstanding warrants. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as set forth above in this paragraph 9.15 or on Schedule 9.15, or as disclosed in Schedule A1(i)(i), hereto, the SEC Documents: (a) none of BioPharmX’s or any BioPharmX Subsidiarythe Borrower’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Borrower; (iib) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Borrower or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Borrower or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Borrower or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Borrower or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there c)there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Borrower or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act; (vid) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Borrower or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Borrower or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Borrower or any of the BioPharmX its Subsidiaries; (viie) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (viiif) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has the Borrower does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of . The Borrower has furnished or made available to the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in Lender upon the SEC Documents which are not so disclosed in the SEC DocumentsLender’s request, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. Truetrue, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, Bylaws and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of solely of: (i) 450,000,000 250,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 85,842,570 are issued and outstanding, [·] shares outstanding and 10,000,000 are reserved for issuance pursuant to BioPharmX’s stock option Convertible Securities (as defined below) other than the Convertible Notes, and purchase plans(ii) 50,000,000 shares of preferred stock, par value $0.0001 per share, of which [·] 2,188,905 are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans duly authorized and [·] shares are subject to outstanding BioPharmX restricted stock unitshave been, or upon issuance will be, validly issued, fully paid and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and
(i) non-assessable. Except as disclosed in Schedule A1(i)(iPublic Disclosures: (i) to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws), hereto, none of BioPharmX’s or any BioPharmX Subsidiary; (ii) the Company’s capital stock is not subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX SubsidiaryLiens; (iiiii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, respectively (other than as may be issued from time to time under any equity incentive plan maintained); (iiiiv) except as disclosed in Schedule A1(i)(iii)for the Convertible Note, there are no outstanding debt securities, convertible notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound; (ivv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Actits subsidiaries; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-anti- dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary of its subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Public Disclosures contain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereof.
Appears in 1 contract
Equity Capitalization. The authorized capital stock of the Company is set forth in the SEC Reports. As of the date of completion this Agreement, all of the Merger, the authorized outstanding shares of capital stock of BioPharmX consists of (i) 450,000,000 shares of BioPharmX the Company, including, without limitation, the Common StockShares, of which are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. To the Company's knowledge, as of the date of completion this Agreement, approximately 3,436,551 shares of the Merger, [·] are Company's issued and outstandingoutstanding Common Shares are owned by Persons who are "affiliates" (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only executive officers, [·] shares directors and holders of at least 10% of the Company's issued and outstanding Common Shares are reserved "affiliates" without conceding that any such Persons are "affiliates" for issuance pursuant to BioPharmX’s stock option purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company's knowledge, except for entities affiliated with the officers and purchase plansdirectors of the Company or as disclosed in the Public Reports, no Person owns 10% or more of which [·] shares are subject to the Company's issued and outstanding BioPharmX options granted under Common Shares (calculated based on the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock unitsassumption that all Convertible Securities, and [·] shares are reserved whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including "blockers") contained therein without conceding that such identified Person is a 10% shareholder for issuance pursuant to purposes of federal securities (other than the aforementioned options andlaws).
(i) Except as disclosed in Schedule A1(i)(i), heretoSEC Reports, none of BioPharmX’s the Company's or any BioPharmX Subsidiary’s 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii)the SEC Reports, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii)the SEC Reports, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv)the SEC Reports, there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), ) except as disclosed in Schedule A1(i)(v)the SEC Reports, there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi)the SEC Reports, there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii)the SEC Reports, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesNote; (viii) except as disclosed in Schedule A1(i)(viii)the SEC Reports, neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents Public Reports which are not so disclosed in the SEC DocumentsPublic Reports, other than those incurred in the ordinary course of BioPharmX’s the Company's or the BioPharmX its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished (or made available through the SEC's ▇▇▇▇▇ system) to the Investor true, correct and complete copies of the BioPharmX Certificate Company's articles of Incorporation incorporation, as amended and BioPharmX as in effect on the date hereof (the "Charter"), and the Company's bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Convertible Securities and the material rights of the holders thereof in respect thereto thereto. "Common Shares" means (i) the Company's Common Shares, US$0.01 par value per share, and (ii) any capital stock into which such Common Shares shall have heretofore been filed as part changed or any share capital resulting from a reclassification of such Common Shares. "Convertible Securities" means any capital stock or other security of the SEC DocumentsCompany or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Shares) or any of its Subsidiaries.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists solely of (i) 450,000,000 5,000,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 11,412,596 are issued and outstanding, [·] shares outstanding and 22,151,694 are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Convertible Securities (as defined below) (other than the aforementioned options and
(iConvertible Notes and Warrants) and/or an Approved Share Plan. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued, fully paid and non-assessable. Except as disclosed in Schedule A1(i)(ithe SEC Documents: (i) to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% shareholder for purposes of federal securities laws), hereto, none of BioPharmX’s or any BioPharmX Subsidiary; (ii) the Company’s capital stock is not subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX SubsidiaryLiens; (iiiii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, respectively (other than as may be issued from time to time under any equity incentive plan maintained); (iiiiv) except as disclosed in Schedule A1(i)(iii)for the Convertible Note, there are no outstanding debt securities, convertible notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound; (ivv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (v), except as disclosed in Schedule A1(i)(v), vi) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except as provided in the Registration Rights Agreement); (vivii) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (viiviii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiix) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary of its subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the . The SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. Truecontain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereof.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mullen Automotive Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 300,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 91,627,012 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 14,950,148 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Exchanged Notes and the Exchanged Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (iii) 5,000,000 shares of preferred stock, of which 1,251,494 are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 5,572,637 shares of the Company’s issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the Securities Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, as of the date hereof, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities (as defined in the Exchanged Note), whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws). Except as disclosed in Schedule A1(i)(i), hereto, 3.9: (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActSecurities Act (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Holders true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto that have heretofore not been filed as part of disclosed in the SEC Documents.
Appears in 1 contract
Sources: Amendment and Exchange Agreement (Pacific Ethanol, Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 250,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 100,670,127 are issued and outstandingoutstanding and 115,778,705, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options andNotes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and shares of Common Stock to be issued to TerraSphere (as defined below) members as disclosed in the SEC Documents and (ii) 10,000,000 shares of preferred stock, of which 17,500 shares of 1% Series A Convertible Preferred Stock are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. 7,038,534 shares of the Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or convertible,
(i) Except as disclosed in Schedule A1(i)(i), hereto, none None of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii)the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii)the SEC Documents, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), ) except as disclosed in Schedule A1(i)(v)the SEC Documents and pursuant to the Registration Rights Agreement, there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii)the SEC Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Converted Organics Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists solely of (i) 450,000,000 200,000,000 shares of BioPharmX Common Stock, of which as which, 21,672,095 shares of the date of completion of the Merger, [·] Common Stock are issued and outstanding, [·] 6,795,779 are outstanding as a result of 14,876,316 repurchased shares held as Treasury Stock pursuant to the Company’s share repurchase programs and 20,396,725 shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Convertible Securities (as defined below) (other than the aforementioned options and
Preferred Shares and the Warrants); (iii) 10,000,000 shares of Series A preferred stock, of which zero shares are issued and outstanding; and (iii) 35,000 shares of Series B preferred stock of which zero shares are issued and outstanding. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as disclosed in Schedule A1(i)(i)the SEC Documents, hereto, (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Certificate Company’s Articles of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities Convertible Securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (PharmaCyte Biotech, Inc.)
Equity Capitalization. As of the date of completion of the MergerExecution Date, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 900,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 1,056,700 shares are issued and outstanding, [·] ; (ii) 100,000,000 shares of Common Stock are reserved for issuance pursuant to BioPharmXthe Company’s stock option 2018 Equity Incentive Plan ( a “Plan”); (iii) 1,950 shares of Series A Convertible Preferred Stock and purchase plans1,000,000 shares of Series B Convertible Preferred Stock, in each case $0.001 par value per share, of which [·] 1,000,001 shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans issued and [·] outstanding; (iv) 20 shares of Series L Convertible Preferred Stock, of which a total of 18 shares are subject to outstanding BioPharmX restricted stock unitsissued and outstanding, (v) 60,000 shares of Series G Convertible Preferred Stock, of which a total of 1950 shares are issued and outstanding, (vi) 40,000,000 shares of Series F Convertible Preferred Stock, of which 10,000 shares are issued and outstanding, and [·] (vii) 375 shares of Series T Convertible Preferred Stock, of which 0 shares are reserved for issued and outstanding. All of the Company’s outstanding shares have been, or upon issuance pursuant to securities (other than will be, validly issued and fully paid and nonassessable. As of the aforementioned options and
Execution Date, (i) Except as disclosed in Schedule A1(i)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiarythe Company’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary the Company has not issued any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreementrights; and (ix) neither BioPharmX nor any of the BioPharmX Company and its Subsidiaries have any no liabilities or obligations required to be disclosed in the SEC Documents which are Financial Statements in accordance with GAAP but not so disclosed in the SEC DocumentsFinancial Statements. As of the Closing Date, no Indebtedness or outstanding securities of the Company is or will be senior to the Preferred Shares in right of payment, whether with respect to interest or upon liquidation or dissolution, other than those incurred in indebtedness secured by purchase money security interests (which is senior only as to underlying assets covered thereby) and capital lease obligations (which is senior only as to the ordinary course of BioPharmX’s or property covered thereby). Notwithstanding the BioPharmX Subsidiaries’ respective businesses foregoing, the Parties understand that the Company filed an Information Statement on Schedule PRE 14C on July 10, 2020, to: (i) increase the authorized Preferred Stock from 100 million shares to 200 million shares; and which, individually or in (ii) change the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies name of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.Company from Lord Global Corporation to 27 Health Holdings Corp.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the MergerMay 28, 2025, the authorized capital stock of BioPharmX the Company consists solely of (i) 450,000,000 5,000,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 79,864,949 are issued and outstandingoutstanding and, [·] shares 681,878,6624 are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Convertible Securities (as defined below) (other than the aforementioned options and
(iConvertible Notes and Warrants) and/or an Approved Share Plan. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued, fully paid and non-assessable. Except as disclosed in Schedule A1(i)(ithe SEC Documents: (i) to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% shareholder for purposes of federal securities laws), hereto, none of BioPharmX’s or any BioPharmX Subsidiary; (ii) the Company’s capital stock is not subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX SubsidiaryLiens; (iiiii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, respectively (other than as may be issued from time to time under any equity incentive plan maintained); (iiiiv) except as disclosed for the Convertible Note and convertible notes issued since May 20, 2025 in Schedule A1(i)(iii)the principal aggregate amount of approximately $2,128,127, there are no outstanding debt securities, convertible notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound; (ivv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (v), except as disclosed in Schedule A1(i)(v), vi) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except as provided in the Registration Rights Agreement); (vivii) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (viiviii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiix) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary of its subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the . The SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. Truecontain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part thereof. 4 Includes 250% of the SEC Documentsshares issuable upon conversion or cash exercise of outstanding notes and warrants, respectively.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mullen Automotive Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized issued capital stock of BioPharmX the Company consists of (i) 450,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] are 13,437,309 issued and outstanding, [·] shares are outstanding Ordinary Shares and 2,911,548 Ordinary Shares reserved for issuance pursuant to BioPharmX’s capital stock option or other securities of the Company or any of its Subsidiaries that are at any time and purchase plansunder any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Company or any of its Subsidiaries (“Convertible Securities”) (other than relating to the aforementioned options and
Securities), (iii) 633,333 deferred B shares of £0.001 each, which were previously issued and have all expired, and (iii) 400,000 deferred C shares of £0.001 each, which were previously issued and have all expired. 3,729,516 shares of the Company’s issued and outstanding Ordinary Shares, on a fully diluted basis, on the date hereof are owned by a Person who is an “affiliate” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Ordinary Shares are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. Except as disclosed in Schedule A1(i)(i)the PPM and the Form 20-F, hereto, (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; Securities and (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights rights, restricted stock units or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of . The Company has furnished to the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueBuyers true, correct and complete copies of the BioPharmX Certificate Company’s Memorandum of Incorporation Association, as amended and BioPharmX Bylawsas in effect on the date hereof (the “Memorandum of Association”), and the Company’s Articles of Association, as amended and as in effect on the date hereof (the “Articles of Association”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Ordinary Shares and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Morria Biopharmaceuticals PLC)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 100,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 43,930,257 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 1,793,310 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Common Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (iii) 10,000,000 shares of preferred stock, none of which are issued and outstanding. 56,069,743 shares of Common Stock are authorized but unissued shares. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. 13,617,654 shares of the Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. With the exception of Excelvantage Group Limited, which owns approximately 27.3% of the Company’s issued and outstanding shares of Common Stock, to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws). Except as disclosed in Schedule A1(i)(i), hereto, the SEC Documents: (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to this Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Kandi Technologies Group, Inc.)
Equity Capitalization. As of the date of completion of the Merger, the hereof,
(i) The authorized capital stock of BioPharmX the Company consists of 250,000,000 shares of Common Stock and 10,000,000 shares of Preferred Stock, par value $0.001 per share.
(ii) The issued and outstanding capital stock of the Company consists of 56,974,623 shares of Common Stock. The shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have not been issued in violation of or are not otherwise subject to any preemptive or other similar rights.
(iii) The Company has reserved 20,719,465 shares of Common Stock for issuance upon the exercise of stock options granted or available for future grant under the Company's stock option plan.
(iv) The Company has reserved 2,181,528 shares of Common Stock for purchase under the Company's Employee Stock Purchase Plan. With the exception of the foregoing, there are (i) 450,000,000 no outstanding subscriptions, options, warrants, convertible or exchangeable securities or other rights granted to or by the Company to purchase shares of BioPharmX Common Stock or other securities of the Company and there are no commitments, or agreements to issue any shares of Common Stock or any security convertible into or exchangeable for Common Stock, of which as of the date of completion of the Merger, [·] are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and
(i) Except as disclosed in Schedule A1(i)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(q)) of BioPharmX the Company or any of the BioPharmX Subsidiaries Subsidiary or by which BioPharmX the Company or any of the BioPharmX Subsidiaries Subsidiary is or may become bound; (iviii) except as disclosed set forth in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any Exhibit 10.5 of the BioPharmX Subsidiaries; (v)Company's Form 10-K for the year ended July 31, except as disclosed in Schedule A1(i)(v)2003, there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX Subsidiaries Subsidiary is obligated to register the sale of any of their securities under the 1933 ActAct (except the Registration Rights Agreement); and (viiv) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX or any of the BioPharmX Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound to redeem a security of BioPharmX or any of the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 500,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 17,070,284 are issued and outstanding, [·] outstanding and 2,007,877 shares are reserved for issuance pursuant to BioPharmX’s stock option Convertible Securities (as defined below) and purchase plans(ii) 50,000,000 shares of preferred stock, of which [·] none are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are subject to duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 5,231,021 shares of the Company’s issued and outstanding BioPharmX options granted under Common Stock on the BioPharmX stock plans date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and [·] shares calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are subject to outstanding BioPharmX restricted stock units, and [·] shares “affiliates” without conceding that any such Persons are reserved “affiliates” for issuance pursuant to purposes of federal securities (other than laws) of the aforementioned options andCompany or any of its Subsidiaries.
(i) Except as disclosed in Schedule A1(i)(i), hereto, none None of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances Liens suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii)the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii)the SEC Documents, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (viiv) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesNote; (viiivii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixvii) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not reasonably be expected to have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Investor, or filed publicly with the SEC on the ▇▇▇▇▇ System, true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Convertible Securities and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Intercloud Systems, Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 shares of BioPharmX unlimited Common StockShares, of which as of the date of completion of the Merger, [·] 52,551,119 shares are issued and outstanding, [·] no shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock unitsheld in treasury, and [·] 2,738,534 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Warrants) exercisable or exchangeable for, or convertible into, Common Shares, and (iii) unlimited shares of preferred stock, none of which, as of the date hereof, are issued and outstanding. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 11,915,911 shares of the Company’s issued and outstanding Common Shares on the date hereof are owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Shares are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of the Subsidiaries. To the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding Common Shares (calculated based on the assumption that all Equivalents, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) but taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws). Except as disclosed in Schedule A1(i)(i), hereto, 3(r): (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined below) of BioPharmX the Company or any of the BioPharmX Subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Amended Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Holder true, correct and complete copies of the BioPharmX Certificate Company’s Articles of Incorporation Amendment, Articles of Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Shares and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Exchange Agreement (Workstream Inc)
Equity Capitalization. 1 As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 200,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerhereof, [·] 123,193,755 shares are issued and outstanding, [·] 21,000,000 shares are reserved for issuance pursuant to BioPharmX’s the Company's stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 12,500,186 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
options, the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, (iii) 50,000,000 shares of preferred stock, par value $0.0001 per share, none of which are issued and outstanding as of the date hereof and (iii) there are 83,997,827 shares of Common Stock held by non-affiliates of the Company. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in (i) Schedule A1(i)(i3(q)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiary’s the Company's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (ii) except as disclosed in Schedule A1(i)(ii3(q)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional shares of capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii3(q)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv3(q)(iv), there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in ) Schedule A1(i)(v3(q)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi3(q)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii3(q)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii3(q)(viii), neither BioPharmX nor any BioPharmX Subsidiary has the Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of Schedule 3(q)(ix), the BioPharmX Company and its Subsidiaries have any no liabilities or obligations required to be disclosed in the SEC Documents which are but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s the Company's or the BioPharmX Subsidiaries’ any of its Subsidiary's' respective businesses and which, individually or in the aggregate, do not or could would not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished or made available to the Buyers true, correct and complete copies of the BioPharmX Certificate Company's Articles of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the "Articles of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX for shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 500,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 111,675,276 shares are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 20,500,796 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock and (iii) 1,000 shares of preferred stock, none of which, as of the date hereof, are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 11,202,174 shares of the Company’s issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of the Subsidiaries. To the Company’s knowledge, as of the date hereof no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Equivalents, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws). Except as disclosed in Schedule A1(i)(i), hereto, 3(r): (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii)the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(s)) of BioPharmX the Company or any of the BioPharmX Subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto that have heretofore not been filed as part of disclosed in the SEC Documents.
Appears in 1 contract
Sources: Securities Purchase Agreement (Generex Biotechnology Corp)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 500,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 15,201,594 are issued and outstanding, [·] outstanding and 2,007,877 shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Convertible Securities (as defined below) (other than the aforementioned options andWarrants) and (ii) 50,000,000 shares of preferred stock, of which none are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 5,231,021 shares of the Company’s issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries.
(i) Except as disclosed in Schedule A1(i)(i), hereto, none None of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances Liens suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii3(r)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii)the SEC Documents, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v)) other than that certain registration rights agreement entered into by the Company on December 13, except as disclosed in Schedule A1(i)(v)2013, there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not reasonably be expected to have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers, or filed publicly with the SEC on the ▇▇▇▇▇ System, true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Convertible Securities and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Intercloud Systems, Inc.)
Equity Capitalization. (a) The authorized capital stock of the Company consists of (i) 200,000,000 shares of common stock, par value $0.01 per share (the “Common Stock”), and (ii) 10,000,000 shares of preferred stock, par value $1.00 per share (the “Preferred Stock”). As of the date of completion of the Mergerthis Agreement, the authorized capital stock of BioPharmX consists of (iA) 450,000,000 67,416,644 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] are Stock were issued and outstanding50,724,720 shares of Common Stock were outstanding (including 1,625,251 Company Restricted Shares), [·] (B) 916,118 shares are of Common Stock were reserved for issuance pursuant to BioPharmX’s stock option and purchase plansthe Company Stock Plans, (C) 110,000 shares of which [·] shares are Common Stock were subject to outstanding BioPharmX options granted under Company Stock Options, (D) 955,939 Company RSUs were outstanding pursuant to which a maximum of 334,854 shares of Common Stock could be issued and (E) no shares of Company Preferred Stock were issued or outstanding. Upon the BioPharmX stock plans filing of the Certificate of Designations with the Secretary of State of the State of Delaware, 200,000 shares of Preferred Stock will be designated as the Series A Preferred Stock.
(b) All of such issued and [·] outstanding shares are subject to outstanding BioPharmX restricted stock unitsduly authorized, validly issued, fully paid and [·] shares are reserved for issuance pursuant to nonassessable. The Purchased Shares will, when issued and delivered in connection with this Agreement, be duly authorized by all necessary corporate action on the part of the Company, validly issued, fully paid and nonassessable and, assuming the accuracy of each of the representations and warranties of the Buyer set forth in ARTICLE II, issued in compliance with all applicable federal and state securities (other than the aforementioned options and
(i) Except as disclosed Laws in Schedule A1(i)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiary’s capital stock is all material respects and will not be subject to preemptive rights or any restrictions on transfer under applicable Law or any contract to which the Company is a party, other similar than those under applicable securities Laws, this Agreement and the Transaction Documents, and will be free and clear of all Transfer Taxes under applicable Law of the United States (or any political subdivision thereof) and Liens, other than those under applicable securities Laws, this Agreement and the Transaction Documents. The shares of Common Stock issuable upon conversion of the Purchased Shares (the “Conversion Shares”) have been, as of the Closing, duly reserved for issuance and, when issued upon conversion thereof in accordance with the terms of the Certificate of Designations, will be duly authorized by all necessary corporate action on the part of the Company, validly issued, fully paid and nonassessable and, assuming the accuracy of each of the representations and warranties of the Buyer set forth in ARTICLE II, issued in compliance with all applicable federal and state securities Laws in all material respects and will not be subject to preemptive rights or any liens or encumbrances suffered or permitted by BioPharmX restrictions on transfer under applicable Law or any BioPharmX Subsidiary; contract to which the Company is a party, other than those under applicable securities Laws, this Agreement and the Transaction Documents, and will be free and clear of all Transfer Taxes under applicable Law of the United States (iior any political subdivision thereof) and Liens, other than those under applicable securities Laws, this Agreement and the Transaction Documents.
(c) Other than as provided in this Agreement or the Transaction Documents, as set forth in Section 3.11(a), and except as disclosed in Schedule A1(i)(ii)for equity incentive awards outstanding under the Company Stock Plans, there are no outstanding subscriptions, options, warrants, scripcalls, convertible securities or other contracts (or any rights, preemptive rights or rights of first offer) relating to subscribe to, calls the issuance or commitments repurchase of any character whatsoever relating tocapital stock, or securities or rights convertible intoother equity interests of the Company, to which the Company is a party, or exercisable by which it is bound, obligating the Company to (i) issue, transfer or exchangeable forsell, or cause to be issued, transferred or sold, any shares of capital stock or other equity interests of BioPharmX the Company or any of its Subsidiaries or securities, bonds, debentures, notes or other obligations convertible into or exchangeable for such shares of capital stock or other equity interests, (ii) grant, extend or enter into any such subscription, option, warrant, call, convertible securities or other contract (or any such right, preemptive right or right of first offer) or (iii) redeem or otherwise acquire any number of such shares of capital stock or other equity interests. Neither the BioPharmX SubsidiariesCompany nor any of its Subsidiaries have outstanding any bonds, debentures, notes or contractsother obligations, commitments, understandings the holders of which have the right to vote (or arrangements by which BioPharmX convert into or exercise for securities having the right to vote) with the stockholders of the Company on any matter.
(d) Neither the Company nor any of its Subsidiaries is a party to any voting trust or other agreement with respect to voting or registration of capital stock or other equity interests of the Company or any of the BioPharmX Subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX or any of the BioPharmX Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound to redeem a security of BioPharmX or any of the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.
Appears in 1 contract
Sources: Investment Agreement (Knoll Inc)
Equity Capitalization. As of the date of completion of hereof, after giving effect to the Mergertransactions contemplated by the Transaction Documents, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 shares of BioPharmX Unlimited Common StockShares, of which as of the date of completion of the Mergerhereof, [·] 117,149,933 are issued and outstanding, [·] 25,000,000 shares are reserved for issuance pursuant to BioPharmX’s the Company's stock option and purchase plans, plan of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 18,504,755 shares are reserved for issuance, (ii) 20,000,000 Class A Convertible Preferred Shares, Series 1 (the "SERIES A SHARES") and (iii) 67,789,300 Class B Convertible Preferred Shares, Series 1 (the "SERIES B SHARES"). The Series A Shares and the Series B Shares are convertible into Common Shares on a one-for one basis (and, in certain circumstances on a greater than one-for-one basis) at the option of the holders and upon certain triggering events. All of such outstanding shares have been, or upon issuance pursuant to securities (other than will be, validly issued and are fully paid and nonassessable. None of the aforementioned options and
(i) Except as disclosed in Schedule A1(i)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiary’s Company's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiary; (ii) except the Company. Except as disclosed in Schedule A1(i)(ii)the 2004 Company 20-F, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of its Subsidiaries. Other than Permitted Debt (as defined in the BioPharmX Subsidiaries; (iiiNotes) except as disclosed and Indebtedness not in Schedule A1(i)(iii)excess US$250,000 individually and US$2,000,000 in the aggregate, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; bound other than those which are being terminated upon the Closing. Other than Permitted Liens (iv) except as disclosed defined in Schedule A1(i)(ivthe Notes), there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except . Except as disclosed in Schedule A1(i)(v)the 2004 Company 20-F, there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; Act (viexcept the Registration Rights Agreement) except or under any applicable Canadian securities laws. Except as disclosed in Schedule A1(i)(vi)the 2004 Company 20-F, there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except . Except as disclosed in Schedule A1(i)(vii)the 2004 Company 20-F, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has . The Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required . The Company has furnished to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. Trueeach Buyer true, correct and complete copies of the BioPharmX Certificate Company's Articles of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the "ARTICLES OF INCORPORATION"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "BYLAWS"), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Shares and the material rights of the holders thereof in respect thereto have heretofore been filed as part thereto. Set forth on Schedule 3(s) is a true, correct and complete list of the SEC Documentsrecord holders of shares of capital stock of the Company and each of its Subsidiaries as of the date hereof. As of the date specified therein, such holders own of record all the outstanding capital stock of the Company and each such Subsidiary, each of them so owning the number of shares set forth opposite such holder's name on Schedule 3(s). Set forth on Schedule 3(s) is a true, correct and complete list (except as otherwise noted on such schedule) of the record holders of options and warrants exercisable for shares of capital stock of the Company and its Subsidiaries. The shares held by the Company or any of its Subsidiaries are held free and clear of all liens or any other restriction on the right to vote, sell or otherwise dispose of such capital stock. There are no bonds, debentures, notes or other indebtedness or securities of the Company or its Subsidiaries having the right to vote (or convertible into, or exchangeable or exercisable for, securities having the right to vote) on any matters on which shareholders of the Subsidiaries of the Company or their respective Subsidiaries may vote.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mitel Networks Corp)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 200,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 3,961,287 are issued and outstandingoutstanding and, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plansexcept as disclosed in the SEC Reports, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] no shares are reserved for issuance pursuant to securities (other than the aforementioned options andConversion Shares) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 15,000,000 shares of preferred stock, of which none are issued and outstanding. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. 1,938,523 shares of the Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are Affiliates (calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are Affiliates without conceding that any such Persons are Affiliates for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the best of the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws).
(i) Except as disclosed in Schedule A1(i)(i), hereto, none None of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances Liens suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing material Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActSecurities Act (except pursuant to this Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents Reports which are not so disclosed in the SEC DocumentsReports, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Purchasers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date hereof, and the terms of all securities convertible intoCompany’s bylaws, or exercisable or exchangeable for, BioPharmX Common Stock as amended and as in effect on the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsdate hereof.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 100,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 28,042,517 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 2,219,360 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (iii) 25,000,000 shares of preferred stock, of which none are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. 3,075,338 shares of the Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are “Affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “Affiliates” without conceding that any such Persons are “Affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. Except as disclosed in Schedule A1(i)(i)the SEC Documents, hereto, none (i) None of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(iithe SEC Documents (collectively, the “Company Stock Plans”), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to this Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreementagreement other than pursuant to the Company Stock Plans; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not have a BioPharmX Material Adverse Effect. TrueThe SEC Documents contain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the MergerFirst Restated Closing Date, the authorized capital stock of BioPharmX the Principal Borrower consists of (i) 450,000,000 135,000,000 shares of BioPharmX Common Stock, of which which, as of the date of completion of First Restated Closing Date, 92,141,951 shares (including the Merger, [·] Shares and the Exchange Shares) are issued and outstanding. All of such outstanding shares of Capital Stock or other Equity Interests of the Principal Borrower and its Subsidiaries have been duly authorized, [·] shares validly issued and are reserved for issuance pursuant to BioPharmX’s stock option fully paid and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and
nonassessable. Except as set forth on Schedule 7.7: (i) Except as disclosed in Schedule A1(i)(i), hereto, none of BioPharmXany Borrower’s or any BioPharmX Subsidiary’s capital stock Capital Stock or other Equity Interest in such Borrower or Subsidiary is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX such Borrower or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii)other than the Notes, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock Capital Stock or other Equity Interest in any of BioPharmX the Borrowers or any of the BioPharmX their Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX any of the Borrowers or any of the BioPharmX their Subsidiaries is or may become bound to issue additional capital stock of BioPharmX Capital Stock or any of the BioPharmX Subsidiaries other Equity Interest in such Borrower or Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock Capital Stock or other Equity Interest in any of BioPharmX the Borrowers or any of the BioPharmX their Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii)other than the Notes, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX any of the Borrowers or any of the BioPharmX their Subsidiaries or by which BioPharmX any of the Borrowers or any of the BioPharmX their Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with BioPharmX any of the Borrowers or any of their Subsidiaries, other than financing statements perfecting Liens granted under the BioPharmX SubsidiariesSecurity Documents in favor of Agent for the benefit of itself and the Holders and Lenders; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX any of the Borrowers or any of the BioPharmX their Subsidiaries is obligated to register the sale of any of their its securities under the 1933 ActAct (except the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi)other than the Notes, there are no outstanding securities or instruments of BioPharmX any of the Borrowers or any of the BioPharmX their Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX any of the Borrowers or any of the BioPharmX their Subsidiaries is or may become bound to redeem a security of BioPharmX any of the Borrowers or any of the BioPharmX their Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor none of the Borrowers or any BioPharmX Subsidiary of their Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor none of the Borrowers or any of the BioPharmX their Subsidiaries have has any liabilities or obligations required to be disclosed in the SEC Documents which are but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Borrowers’ and their Subsidiaries’ respective businesses and whichbusinesses. Prior to the applicable Closing, individually or in the aggregate, do not or could not Borrowers have a BioPharmX Material Adverse Effect. Trueprovided to the Lenders true, correct and complete copies of (i) each Borrower’s and Subsidiary’s certificate or articles of incorporation (or other applicable governing document), as amended and as in effect on the BioPharmX Certificate of Incorporation and BioPharmX Bylawsapplicable Closing Date, and (ii) each Borrower’s and Subsidiary’s bylaws, as amended and as in effect on the terms of applicable Closing Date (or other applicable governing document). Schedule 7.7 identifies all outstanding securities (other than the Notes) convertible into, or exercisable or exchangeable for, BioPharmX Common shares of Capital Stock or other Equity Interests in any of the Borrowers or any of their Subsidiaries and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized share capital stock of BioPharmX the Company consists of (i) 450,000,000 shares of BioPharmX Common Stock55,000,000 Ordinary Shares, of which as of the date of completion of the Mergerhereof, [·] approximately 28,100,000 are issued and outstanding, [·] approximately 7,750,000 shares are reserved for issuance pursuant to BioPharmX’s the Company's stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 13,541,555 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Notes and the Warrants) exercisable or exchangeable for, or convertible into, Ordinary Shares. Assuming approval of the Authorized Share Capital Resolution (ias defined below) at the Shareholder Meeting (as defined below), the authorized share capital of the Company shall consist of 75,000,000 Ordinary Shares. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule A1(i)(i), hereto, 3(r) and except pursuant to benefit plans disclosed in the Company's filings with the SEC available on EDGAR: (i) none of BioPharmX’s or any BioPharmX Subsidiary’s the Com▇▇▇▇'s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional share capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX or any of the BioPharmX Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound to redeem a security of BioPharmX or any of the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.its
Appears in 1 contract
Sources: Securities Purchase Agreement (Commtouch Software LTD)
Equity Capitalization. As of the date of completion of the MergerMay 28, 2025, the authorized capital stock of BioPharmX the Company consists solely of (i) 450,000,000 5,000,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 79,864,949 are issued and outstanding, [·] shares outstanding and 696,878,6624 are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Convertible Securities (as defined below) (other than the aforementioned options and
(iConvertible Notes and Warrants) and/or an Approved Share Plan. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued, fully paid and non-assessable. Except as disclosed in Schedule A1(i)(ithe SEC Documents: (i) to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% shareholder for purposes of federal securities laws), hereto, none of BioPharmX’s or any BioPharmX Subsidiary; (ii) the Company’s capital stock is not subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX SubsidiaryLiens; (iiiii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, respectively (other than as may be issued from time to time under any equity incentive plan maintained); (iiiiv) except as disclosed for the Convertible Note and convertible notes issued since May 20, 2025 in Schedule A1(i)(iii)the principal aggregate amount of approximately $2,580,000, there are no outstanding debt securities, convertible notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound; (ivv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (v), except as disclosed in Schedule A1(i)(v), vi) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except as provided in the Registration Rights Agreement); (vivii) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (viiviii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiix) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary of its subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the . The SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. Truecontain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part thereof. 4 Includes 250% of the SEC Documentsshares issuable upon conversion or cash exercise of outstanding notes and warrants, respectively.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mullen Automotive Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists solely of (i) 450,000,000 150,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 113,985,916 shares are issued and outstanding, [·] outstanding and 15,000,000 shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, issuance. All of which [·] such outstanding shares are subject duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. As of the date hereof, approximately 26,000,000 shares of the Company’s issued and outstanding Common Stock are owned by Persons who are “affiliates” (as defined in Rule 405 of the Securities Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company. Except as set forth in the SEC Documents or in Schedule 2 attached to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Disclosure Letter: (i) Except as disclosed in Schedule A1(i)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiarythe Company’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries, Company or contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries Company is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX SubsidiariesCompany; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries Company or by which BioPharmX or any of the BioPharmX Subsidiaries Company is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX SubsidiariesCompany; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries Company is obligated to register the sale of any of their securities under the 1933 Securities Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX or any of the BioPharmX Subsidiaries Company which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries Company is or may become bound to redeem a security of BioPharmX or any of the BioPharmX SubsidiariesCompany; and (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC DocumentsSubscription Shares.
Appears in 1 contract
Sources: Sino Foreign Cooperative Joint Venture Contract (Aura Systems Inc)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (iA) 450,000,000 10,000,000 shares of BioPharmX Preferred Stock, of which 1,000,000 shares are designated as Series A preferred stock, of which 948,022 shares of issued and outstanding, and (B) 500,000,000 shares of Common Stock, of which as of the date of completion of the Merger, [·] 196,100,271 shares are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 7,494,444 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
(iWarrants) exercisable or exchangeable for, or convertible into, Common Stock. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as disclosed in Schedule A1(i)(i), hereto, 3(r): (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(s)) of BioPharmX the Company or any of the BioPharmX Subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Certificate Company’s Articles of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto that have heretofore not been filed as part of disclosed in the SEC Documents.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 3,000,000 shares of BioPharmX Common Stockpreferred stock, par value $0.001 per share, of which 2,000,000 shares are designated as Series A Convertible Preferred Stock (“Series A Preferred Stock”), and 25,000,000 shares of Common Stock. As of the date hereof, 1,247,668 shares of completion Series A Preferred Stock are issued and outstanding and 7,650,165 shares of the Merger, [·] Common Stock are issued and outstanding, [·] of which 6,818,142 shares of Common Stock are held by non-affiliates of the Company. As of the date hereof, 2,535,885 shares are reserved for issuance upon conversion of the Series A Preferred Stock, 482,550 shares of Common Stock are reserved for issuance upon conversion of the Company’s 8% Subordinated Convertible Notes due November 30, 2018 and January 31, 2019 (collectively, the “8% Notes”), 1,056,644 shares of Common Stock are reserved for issuance upon exercise of outstanding warrants and 516,342 shares of Common Stock are reserved for issuance pursuant to BioPharmX’s the Company's stock option and purchase plans, . All of which [·] such outstanding shares have been validly issued and are subject to outstanding BioPharmX options granted under the BioPharmX stock plans fully paid and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and
(i) non-assessable. Except as disclosed in Schedule A1(i)(i)the SEC Documents, hereto, (i) none of BioPharmX’s or any BioPharmX Subsidiary’s the Company's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional shares of capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound, other than the Taglich Loans; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v)) , there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Company and its Subsidiaries have any no liabilities or obligations required to be disclosed in the SEC Documents which are but not so disclosed in the SEC Documents, other than the Taglich Loans and those incurred in the ordinary course of BioPharmX’s the Company's or the BioPharmX Subsidiaries’ any of its Subsidiary's' respective businesses and which, individually or in the aggregate, do not or could would not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished or made available to the Buyers true, correct and complete copies of the BioPharmX Certificate Company's Articles of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the "Articles of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX for shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Air Industries Group)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (ix) 450,000,000 100,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 33,193,930 shares are issued and outstanding, [·] and (y) no shares are reserved of preferred stock. As of the date hereof, the Company has authorized 4,374,059 shares of Common Stock for issuance pursuant to BioPharmX’s under its stock option and purchase incentive plans, of which [·] options for 2,859,083 shares are subject have been granted, 1,447,133 shares have been issued pursuant to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock unitsgrants, and [·] 25,929 shares are reserved remain available for issuance pursuant to securities issuance. The Company also has issued warrants (other than the aforementioned options and
Warrants) that remain outstanding for the purchase of an aggregate of 6,964,057 shares of Common Stock. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as set forth above in this Section 3(q) or on Schedule 3(q): (i) Except as disclosed in Schedule A1(i)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiarythe Company’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional shares of capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (viiv) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; and (viiv) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (viiivi) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required . The Company has filed as exhibits to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. Truetrue, correct and complete copies of the BioPharmX Certificate Articles of Incorporation Organization and BioPharmX the Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of solely of: (i) 450,000,000 250,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 73,546,533 are issued and outstanding, [·] shares outstanding and 10,000,000 are reserved for issuance pursuant to BioPharmX’s stock option Convertible Securities (as defined below) other than the Convertible Notes, and purchase plans(ii) 50,000,000 shares of preferred stock, par value $0.0001 per share, of which [·] 2,188,905 are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans duly authorized and [·] shares are subject to outstanding BioPharmX restricted stock unitshave been, or upon issuance will be, validly issued, fully paid and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and
(i) non-assessable. Except as disclosed in Schedule A1(i)(iPublic Disclosures: (i) to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws), hereto, none of BioPharmX’s or any BioPharmX Subsidiary; (ii) the Company’s capital stock is not subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX SubsidiaryLiens; (iiiii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, respectively (other than as may be issued from time to time under any equity incentive plan maintained); (iiiiv) except as disclosed in Schedule A1(i)(iii)for the Convertible Note, there are no outstanding debt securities, convertible notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound; (ivv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Actits subsidiaries; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-anti- dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary of its subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Public Disclosures contain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereof.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 150,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 70,539,499 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 51,479,544 shares are reserved for issuance pursuant to securities (other than the aforementioned options andNotes and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 5,000,000 shares of preferred stock, none of which are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in the SEC Documents, to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws).
(i) Except pursuant to the Stock Pledge and Security Agreement, dated June 1, 2010, by and between the Company, as disclosed in Schedule A1(i)(i)Pledgor and/or Debtor, heretoand Teton, Ltd., as Secured Party, as has been amended, supplemented or modified, none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii)the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii)the SEC Documents, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v)SEC Documents and pursuant to the Registration Rights Agreement, there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (viv) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (viivi) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixviii) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Certificate Company’s Articles of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date hereof (the “Articles of Incorporation”), and the terms of all securities convertible intoCompany’s bylaws, or exercisable or exchangeable for, BioPharmX Common Stock as amended and as in effect on the material rights of date hereof (the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents“Bylaws”).
Appears in 1 contract
Sources: Securities Purchase Agreement (Pegasi Energy Resources Corporation.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 100,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 40,105,321 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 2,055,591 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Common Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (iii) 10,000,000 shares of preferred stock, none of which are issued and outstanding. 59,894,679 shares of Common Stock are authorized but unissued shares. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. 13,378,500 shares of the Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. With the exception of Excelvantage Group Limited, which owns approximately 32.26% of the Company’s issued and outstanding shares of Common Stock, to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws). Except as disclosed in Schedule A1(i)(i), hereto, the SEC Documents: (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to this Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part thereto. “Convertible Securities” means any capital stock or other security of the SEC DocumentsCompany or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (Kandi Technologies Group, Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of solely of: (i) 450,000,000 250,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 3,484,749 are issued and outstanding, [·] shares outstanding and 2,789,887 are reserved for issuance pursuant to BioPharmX’s stock option Convertible Securities (as defined below) other than the Convertible Notes, and purchase plans(ii) 50,000,000 shares of preferred stock, par value $0.0001 per share, of which [·] 2,388,905 are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans duly authorized and [·] shares are subject to outstanding BioPharmX restricted stock unitshave been, or upon issuance will be, validly issued, fully paid and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and
(i) non-assessable. Except as disclosed in Schedule A1(i)(ithe SEC Documents: (i) to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% shareholder for purposes of federal securities laws), hereto, none of BioPharmX’s or any BioPharmX Subsidiary; (ii) the Company’s capital stock is not subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX SubsidiaryLiens; (iiiii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, respectively (other than as may be issued from time to time under any equity incentive plan maintained); (iiiiv) except as disclosed in Schedule A1(i)(iii)for the Convertible Note, there are no outstanding debt securities, convertible notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound; (ivv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (v), except as disclosed in Schedule A1(i)(v), vi) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except as provided in the Registration Rights Agreement); (vivii) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (viiviii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-anti- dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiix) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary of its subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the . The SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. Truecontain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereof.
Appears in 1 contract
Equity Capitalization. As of the Original Date and the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX consists the Company consisted and consists, respectively, of (i) 450,000,000 60,000,000 shares of BioPharmX Class A Common Stock, of which as of the Original Date and the date of completion of the Mergerhereof, [·] 34,660,657 are issued and outstanding, [·] outstanding and 4,817,619 shares are reserved for issuance pursuant to BioPharmXthe Company’s stock option and purchase plans, (ii) 10,000,000 shares of Class B Common Stock, $0.10 par value (the “Class B Common Stock”), of which [·] as of the Original Date and the date hereof, 1,500,000 are issued and outstanding and (iii) 2,000,000 shares are subject to of preferred stock, $.01 par value per share, of which as of the Original Date and the date hereof none of which is issued and outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are or reserved for issuance. All of such outstanding shares have been, or upon issuance pursuant to securities (other than the aforementioned options and
(i) will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule A1(i)(i), hereto, 3(r): (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (ii) except other than the Original Series A Warrants and warrants to purchase an aggregate of 2,109,275 shares of Class A Common Stock issued in connection with that Securities Purchase Agreement (the “June 2004 Purchase Agreement”), dated as disclosed in Schedule A1(i)(iiof June 29, 2004, by and among the Company and the purchasers signatory thereto (such purchasers, the “June 2004 Participants”), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional share capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(s)) of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with BioPharmX or any of the BioPharmX SubsidiariesCompany; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Company and its Subsidiaries have any no liabilities or obligations required to be disclosed in the SEC Documents which are but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyer true, correct and complete copies of the BioPharmX Company’s Restated Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the Original Date and the date hereof (the “Certificate of Incorporation”), and the Company’s By-laws, as amended and as in effect on the Original Date and the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Class A Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists solely of (i) 450,000,000 5,000,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 61,595,743 are issued and outstanding, [·] shares outstanding and 81,620,446 are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Convertible Securities (as defined below) (other than the aforementioned options and
(iConvertible Notes and Warrants) and/or an Approved Share Plan. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued, fully paid and non-assessable. Except as disclosed in Schedule A1(i)(ithe SEC Documents: (i) to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% shareholder for purposes of federal securities laws), hereto, none of BioPharmX’s or any BioPharmX Subsidiary; (ii) the Company’s capital stock is not subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX SubsidiaryLiens; (iiiii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, respectively (other than as may be issued from time to time under any equity incentive plan maintained); (iiiiv) except as disclosed in Schedule A1(i)(iii)for the Convertible Note, there are no outstanding debt securities, convertible notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound; (ivv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (v), except as disclosed in Schedule A1(i)(v), vi) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except as provided in the Registration Rights Agreement); (vivii) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (viiviii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiix) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary of its subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the . The SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. Truecontain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereof.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mullen Automotive Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 25,000,000 shares of BioPharmX Common StockStock and 1,000,000 shares of preferred stock, par value $0.01 per share. As of which as August 8, 2016, (i)(A) 14,510,960 shares of Common Stock were issued and outstanding (including 843,692 unvested restricted shares), (B) 8,382 shares of Common Stock were held in treasury, (C) no shares of Common Stock were held by Subsidiaries of the date Company, (D) 1,472,143 shares of completion of the Merger, [·] are issued and outstanding, [·] shares are Common Stock were reserved for issuance of equity incentives pursuant to BioPharmX’s stock option and the 2013 Equity Compensation Plan, (E) options to purchase plans, 327,857 shares of which [·] shares are subject to outstanding BioPharmX options Common Stock granted under the BioPharmX stock plans and [·] 2013 Equity Compensation Plan were outstanding, with a weighted average exercise price per share of $3.60, (F) warrants to purchase up to 4,112,500 shares are subject to outstanding BioPharmX of Common Stock were outstanding, (G) no shares of restricted stock unitsgranted under the 2013 Equity Compensation Plan were outstanding, and [·] (ii) no shares of preferred stock of the Company were outstanding. All of such outstanding shares of Common Stock are reserved for duly authorized and have been, or upon issuance pursuant to will be, validly issued, fully paid and nonassessable. All of such outstanding shares of Common Stock have been have been issued in compliance in all material respects with all applicable federal and state securities (other than laws. None of the aforementioned options and
(i) Except as disclosed in Schedule A1(i)(i), hereto, none of BioPharmXCompany’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there Encumbrances. There are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there . There are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of its Subsidiaries. Neither the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; . There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the Share Issuance and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC DocumentsSale.
Appears in 1 contract
Sources: Stock Purchase Agreement (Professional Diversity Network, Inc.)
Equity Capitalization. (i) As of the date execution of completion of the Mergerthis Agreement, the authorized capital stock of BioPharmX the Company consists of (iA) 450,000,000 shares of BioPharmX Common Stock, of which as 781,250,000 Class A Ordinary Shares and (B) 781,250,000 class B Ordinary Shares (“Class B Shares”). As of the date execution of completion of the Mergerthis Agreement, [·] are (1) 2,905,930 Ordinary Shares were issued and outstanding and (2) 1,459,438 Class B Shares were issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and.
(iii) All of the Company’s issued and outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable.
(iii) Except as disclosed in Schedule A1(i)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii)the SEC Reports, there are no outstanding subscriptions, options, warrants, scripcalls, convertible securities or other contracts (or any rights, preemptive rights or rights of first offer) relating to subscribe to, calls the issuance or commitments repurchase of any character whatsoever relating tocapital stock, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock other equity interests of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by to which BioPharmX the Company or any of the BioPharmX its Subsidiaries is a party, or may become bound to issue additional capital stock of BioPharmX by which it is bound, obligating the Company or any of the BioPharmX its Subsidiaries to (A) issue, transfer or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating tosell, or securities cause to be issued, transferred or rights convertible into, or exercisable or exchangeable forsold, any shares of capital stock or other equity interests of BioPharmX the Company or any of the BioPharmX Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt its Subsidiaries or securities, notesbonds, credit agreementsdebentures, credit facilities notes or other agreementsobligations convertible into or exchangeable for such shares of capital stock or other equity interests, documents (B) grant, extend or instruments evidencing Indebtedness enter into any such subscription, option, warrant, call, convertible securities or other contract (or any such right, preemptive right or right of BioPharmX first offer) or (C) redeem or otherwise acquire any number of such shares of capital stock or other equity interests.
(iv) The SEC Reports set forth, as of the execution of this Agreement, the name and jurisdiction of organization of each Subsidiary of the Company or joint venture to which the Company or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX or any of the BioPharmX Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound to redeem a security of BioPharmX or any of the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsparty.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mobile-Health Network Solutions)
Equity Capitalization. As The capitalization of the date of completion of the Merger, the authorized capital stock of BioPharmX consists of (i) 450,000,000 shares of BioPharmX Common Stock, of which Company as of the date of completion hereof is as described in Section 3(r)(i) of the MergerDisclosure Letter. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, [·] are or upon issuance will be, validly issued and outstandingare fully paid and nonassessable. 3,079,853 shares of the Company’s issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, [·] directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, as of the date hereof no Person owns 10% or more of the Company’s issued and outstanding shares are reserved of Common Stock (calculated based on the assumption that all Equivalents, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for issuance pursuant to BioPharmX’s stock option and purchase plans, purposes of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to federal securities (other than the aforementioned options and
(i) laws). Except as disclosed in Schedule A1(i)(i), hereto, Section 3(r)(ii) of the Disclosure Letter: (i) none of BioPharmXthe Company’s or any BioPharmX material Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any material amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except as contemplated by this Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Certificate Company’s Articles of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date hereof, including, without limitation, any certificates of determination contained therein or attached thereto (the “Articles of Incorporation”), and the terms of all securities convertible intoCompany’s bylaws, or exercisable or exchangeable for, BioPharmX Common Stock as amended and as in effect on the material rights of date hereof (the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents“Bylaws”).
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of solely of: (i) 450,000,000 900,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 116,548,559 are issued and outstanding, [·] shares outstanding and 10,000,000 are reserved for issuance pursuant to BioPharmX’s stock option Convertible Securities (as defined below) other than the Convertible Notes, and purchase plans(ii) 50,000,000 shares of preferred stock, par value $0.0001 per share, of which [·] 2,188,905 are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans duly authorized and [·] shares are subject to outstanding BioPharmX restricted stock unitshave been, or upon issuance will be, validly issued, fully paid and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and
(i) non-assessable. Except as disclosed in Schedule A1(i)(iPublic Disclosures: (i) to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws), hereto, none of BioPharmX’s or any BioPharmX Subsidiary; (ii) the Company’s capital stock is not subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX SubsidiaryLiens; (iiiii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, respectively (other than as may be issued from time to time under any equity incentive plan maintained); (iiiiv) except as disclosed in Schedule A1(i)(iii)for the Convertible Note, there are no outstanding debt securities, convertible notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound; (ivv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Actits subsidiaries; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-anti- dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary of its subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Public Disclosures contain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereof.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX consists the Company consisted of (i) 450,000,000 75,000,000 shares of BioPharmX Common StockStock and (ii) 2,000,000 shares of preferred stock, par value $0.001 per share. As of which as September 30, 2024, (i) 30,898,255 shares of the date of completion of the Merger, [·] are Common Stock were issued and outstanding, [·] (ii) 7,292,844 shares are of Common Stock were reserved for issuance pursuant to BioPharmXthe Company’s stock option and purchase equity incentive plans, of which [·] 5,965,390 shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are were reserved for issuance pursuant to securities upon the exercise of stock options and vesting of restricted stock units outstanding, (other than the aforementioned options and
iii) 44,068 shares of Series A Convertible Preferred Stock were issued and outstanding, and (iiv) 78,932 shares of Series A Convertible Preferred Stock were reserved for future issuance. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as disclosed in Schedule A1(i)(i), hereto, the SEC Documents: (A) none of BioPharmX’s or any BioPharmX Subsidiarythe Company’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (iiB) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional shares of capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act; (viiv) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (viiv) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesShares; and (viiivi) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.
Appears in 1 contract
Sources: Stock Purchase Agreement (Lifecore Biomedical, Inc. \De\)
Equity Capitalization. As of the date of completion of the MergerMay 1, 2006, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 100,000,000 shares of BioPharmX common stock, $.01 par value (the “Common Stock”), 54,740,296 of which as of the date of completion of the Merger, [·] are issued and outstandingoutstanding and (ii) 10,000,000 shares of preferred stock, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans$.01 par value, none of which [·] is issued and outstanding. All of such outstanding shares have been validly issued and are subject to outstanding BioPharmX options granted under the BioPharmX stock plans fully paid and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and
(i) nonassessable. Except as disclosed in Schedule A1(i)(i), hereto, 3(n): (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in the Notes) of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iviii) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with BioPharmX or any of the BioPharmX SubsidiariesCompany; and (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreementiv) under which BioPharmX or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of its Subsidiaries. The Company has furnished to the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueBuyer true, correct and complete copies of the BioPharmX Certificate Company’s Articles of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the "Articles of Incorporation”), the Company’s Bylaws, as amended and as in effect on the terms of date hereof (the “Bylaws”), and all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights agreements of the holders thereof Company relating to any Indebtedness (as defined in respect thereto have heretofore been filed as part the Notes) of the SEC DocumentsCompany.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 10,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 3,801,991 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 1,449,618 shares are reserved for issuance pursuant to securities (other than the aforementioned options andNotes, the Warrants and the Placement Agent Warrant) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 3,000,000 shares of preferred stock, of which none are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 450,365 shares of the Company's issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are "affiliates" (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company's issued and outstanding Common Stock are "affiliates" without conceding that any such Persons are "affiliates" for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company's knowledge, no Person owns 10% or more of the Company's issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including "blockers") contained therein without conceding that such identified
(i) Except as disclosed in Schedule A1(i)(i), hereto, none None of BioPharmX’s the Company's or any BioPharmX Subsidiary’s 's capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii3(r)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii3(r)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s the Company's or the BioPharmX its Subsidiaries’ ' respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company's Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Socket Mobile, Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized share capital stock of BioPharmX the Company consists of (i) 450,000,000 shares of BioPharmX Common Stock5,000,000,000 Ordinary Shares, of which as of the date of completion of the Mergerhereof, [·1,315,207] shares are issued and outstanding, [·] shares are no share is reserved for issuance pursuant to BioPharmXthe Company’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 1,124,666 shares are reserved for issuance pursuant to securities (other than the aforementioned options andand Warrants) exercisable or exchangeable for, or convertible into, Ordinary Shares, and no preferred shares. No Ordinary Shares are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued, fully paid and nonassessable. 3,955 of the Company’s issued and outstanding Ordinary Shares on the date hereof are owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding Ordinary Shares (calculated based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws).
(i) Except as disclosed in Schedule A1(i)(i), heretothe SEC Documents, none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii)the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in the SEC Documents or in Schedule A1(i)(iii3(q)(i), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv)as disclosed in the SEC Documents, there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in the SEC Documents or in Schedule A1(i)(v3(q)(ii), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi)the SEC Documents, there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii)the SEC Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii)the SEC Documents, neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation Company’s Memorandum And Articles Of Association, as amended and BioPharmX Bylawsas in effect on the date hereof (the “Amended And Restated Memorandum And Articles Of Association”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Ordinary Shares and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC DocumentsDocuments or provided to the Buyer.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 24,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 6,282,761 are issued and outstanding, [·] outstanding and 4,022,844 shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Convertible Securities (as defined below) (other than the aforementioned options and
Series C Preferred Shares and the Warrants), and (iii) 20,000,000 shares of preferred stock, of which 0 are Series A Convertible Preferred Stock issued and outstanding and 79,246 are Series B Convertible Preferred Stock issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares of Common Stock are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. 66,483 shares of the Company’s issued and outstanding Common Stock, as of November 13, 2017, are owned by Persons who are Affiliates of the Company. Except as disclosed in Schedule A1(i)(ithe SEC Documents: (i) to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws), hereto, none of BioPharmX’s or any BioPharmX Subsidiary; (ii) the Company’s capital stock is not subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiaryencumbrances; (iiiii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX SubsidiariesCompany, or contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries Company is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or the Company (other than as may be issued from time to time under any of the BioPharmX Subsidiariesequity incentive plan maintained); (iiiiv) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries Company or by which BioPharmX or any of the BioPharmX Subsidiaries Company is or may become bound; (ivv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX SubsidiariesCompany; (v), except as disclosed in Schedule A1(i)(v), vi) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX or any of the BioPharmX Subsidiaries Company is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vivii) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX or any of the BioPharmX Subsidiaries Company which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries Company is or may become bound to redeem a security of BioPharmX or any of the BioPharmX SubsidiariesCompany; (viiviii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiix) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary the Company has any no stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixx) neither BioPharmX nor any of the BioPharmX Subsidiaries Company does not have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX Subsidiaries’ respective businesses business and which, individually or in the aggregate, do which does not or could not have a BioPharmX Material Adverse Effect. TrueThe SEC Documents contain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.thereof. DM_US 86580026-11.096039.0012 ▇▇▇▇-▇▇▇▇-▇▇▇▇, v. 1
Appears in 1 contract
Sources: Securities Purchase Agreement (Skyline Medical Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized share capital stock of BioPharmX the Company consists of (i) 450,000,000 shares of BioPharmX Common Stock50,000,000 Ordinary Shares, of which as of the date of completion of the Mergerhereof, [·] 12,897,856 are issued and outstanding, [·] 2,000,000 shares are reserved for issuance pursuant to BioPharmXthe Company’s stock share option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are 0 share is reserved for issuance pursuant to securities (other than the aforementioned options andand Warrants) exercisable or exchangeable for, or convertible into, Ordinary Shares and no preferred shares. No Ordinary Shares are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued, fully paid and nonassessable. 10,310,000 of the Company’s issued and outstanding Ordinary Shares on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Ordinary Shares are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding Ordinary Shares (calculated based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% shareholder for purposes of federal securities laws).
(i) Except as disclosed in Schedule A1(i)(i), heretothe SEC Documents, none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii)the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in the SEC Documents or in Schedule A1(i)(iii3(q)(i), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv)as disclosed in the SEC Documents, there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in the SEC Documents or in Schedule A1(i)(v3(q)(ii), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi)the SEC Documents, there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii)the SEC Documents, there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii)the SEC Documents, neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate Company’s Memorandum and Articles of Incorporation Association, as amended and BioPharmX Bylawsas in effect on the date hereof (the “Amended and Restated Memorandum and Articles of Association”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Ordinary Shares and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists solely of (i) 450,000,000 100,000,000 shares of BioPharmX Common Stock, of which as which, 55,102,055 shares of the date of completion of the Merger, [·] Common Stock are issued and outstanding, [·] outstanding and 2,174,710 shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Convertible Securities (as defined below) (other than the aforementioned options and
Notes and the Warrants or in connection with the Concurrent Offering) and (iii) 5,000,000 shares of preferred stock, none of which are issued and outstanding. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as disclosed in Schedule A1(i)(i)the SEC Documents or as contemplated by the Concurrent Offering, hereto, none (i) None of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities Convertible Securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Smith Micro Software, Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 74,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 12,609,280 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 2,218,021 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Common Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (iii) 1,000,000 shares of preferred stock, none of which are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. 6,513,000 shares of the Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws). Except as disclosed in Schedule A1(i)(i), hereto, 3(r): (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (China Armco Metals, Inc.)
Equity Capitalization. As of the date of completion of the MergerDecember 15, 2020, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 250,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerhereof, [·] 41,933,086 are issued and outstanding, [·] 18,500,00 shares are reserved for issuance pursuant to BioPharmXthe Company’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 13,487,500 shares are reserved for issuance pursuant to securities (other than the aforementioned options andoptions) exercisable or exchangeable for, or convertible into, Common Stock and (ii) 10,000,000 shares of preferred stock, par value $0.001 per share, none of which are designated and issued and outstanding. 257,732 shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized, validly issued and are fully paid and nonassessable. 9,458,440 shares of the Company’s issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the ▇▇▇▇ ▇▇▇) of the Company or any of its Subsidiaries.
(i) Except as disclosed in Schedule A1(i)(i3(p), hereto, none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii3(p), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiaries, is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiaries, or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii3(p), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiaries, or by which BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiaries, is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv3(p), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), ) except as disclosed in Schedule A1(i)(v3(p), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreementas set forth herein) under which BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiaries, is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi3(p), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiaries, which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii3(p), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesShares; (viii) except as disclosed in Schedule A1(i)(viii3(p), neither BioPharmX the Company nor any BioPharmX Subsidiary Subsidiary, if any, has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any material non-public information, including any material liabilities or obligations obligations, that are required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate Company’s articles of Incorporation incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents. Except as set forth in Schedule 3(p), each stock option granted by the Company was granted (x) in accordance with the terms of the applicable stock option plan of the Company and (y) with an exercise price at least equal to the fair market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. To the Company’s Knowledge, no stock option granted under the Company’s stock option plan has been backdated. To the Company’s Knowledge, the Company has not granted, and there is no and has been no policy or practice of the Company to grant, stock options prior to, or otherwise coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.”
Appears in 1 contract
Sources: Securities Purchase Agreement (Medicine Man Technologies, Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 100,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 32,592,440 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 1,793,310 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Common Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (iii) 10,000,000 shares of preferred stock, none of which are issued and outstanding. 67,407,560 shares of Common Stock are authorized but unissued shares. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. 13,358,500 shares of the Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. With the exception of Excelvantage Group Limited, which owns approximately 36.8% of the Company’s issued and outstanding shares of Common Stock, to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws). Except as disclosed in Schedule A1(i)(i), hereto, the SEC Documents: (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to this Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Kandi Technologies Group, Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 250,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerhereof, [·] 75,147,388 are issued and outstanding, [·] 2,579,746 shares are reserved for issuance pursuant to BioPharmX’s Company stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 205,097,771 shares are reserved for issuance pursuant to securities (other than the aforementioned options andand the Notes and the Warrants) exercisable or exchangeable for, or convertible into, Common Stock, (ii) 0 shares of preferred stock, $0.001 par value, of which as of the date hereof, 0 are issued and outstanding, and (iii) 0 shares of Common Stock are held in treasury or owned by the Company’s Subsidiaries. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 1,135,250 shares of the Company’s issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the Securities Act) of the Company or any of its Subsidiaries.
(i) Except as disclosed in Schedule A1(i)(i3(p)(i), hereto, none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii3(p)(ii), there are no outstanding options, warrants, scripscrips, rights or obligations to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii3(p)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv3(p)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v3(p)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act; (vi) except as disclosed in Schedule A1(i)(vi3(p)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) as of the Closing, there are no outstanding securities or instruments of the Company or any of its Subsidiaries, including without limitation, pursuant to the F8 Documents (as defined in the Subordination Agreement (as defined below)) which contain any redemption or similar provisions which may be triggered prior to such date that is 91 days after the Maturity Date (as defined in the Notes) of the Notes, and there are no contracts, commitments, understandings or arrangements, including, without limitation, pursuant to the F8 Documents, 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 prior to such date that is 91 days after the Maturity Date of the Notes, (viii) except as disclosed in Schedule A1(i)(vii3(p)(viii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiix) except as disclosed in Schedule A1(i)(viii3(p)(ix), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixx) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX any of its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not reasonably expected to have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Company’s certificate of incorporation, as amended or restated and as in effect on the date hereof (the “Certificate of Incorporation Incorporation”), and BioPharmX the Company’s by-laws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 10,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 7,965,854 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 388,708 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Common Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (iii) 147,500 shares of Series AA preferred stock, 57,411 of which are issued and outstanding. 33,087 shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 2,798,927 shares of the Company’s issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, except as disclosed in the SEC Documents, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Equivalents, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws). Except as disclosed in Schedule A1(i)(i), hereto, 3(r): (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(s)) of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts material amounts, either individually or in the aggregate, filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Certificate Company’s Articles of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto that have heretofore not been filed as part of disclosed in the SEC Documents.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 100,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 25,275,893 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 1,449,043 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (iii) 25,000,000 shares of preferred stock, of which none are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. 3,078,134 shares of the Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are “Affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “Affiliates” without conceding that any such Persons are “Affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. Except as disclosed in Schedule A1(i)(i)the SEC Documents, hereto, none (i) None of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(iithe SEC Documents (collectively, the “Company Stock Plans”), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to this Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreementagreement other than pursuant to the Company Stock Plans; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not have a BioPharmX Material Adverse Effect. TrueThe SEC Documents contain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As (1) The Company has, as of the date of completion of the Mergerhereof, the duly authorized capital stock consisting of BioPharmX consists of (i) 450,000,000 305,000,000 shares of BioPharmX all classes of stock, of which (A) 300,000,000 shares are Common Stock, of which as of the date of completion of the Mergerhereof, [·] (i) 107,695,197 shares are issued and outstanding, [·] (ii) 73,700 shares are held in treasury, (iii) 11,973,297 shares are issuable upon exercise of outstanding options and (iv) 1,399,293 and 341,450 shares are reserved for issuance pursuant to BioPharmXunder the Company’s stock option plan and purchase plansrestricted stock plan, respectively (as of December 31, 2009, and as of December 31 of each succeeding year, the number of shares of common stock issuable under the Company’s stock option plan automatically increases so that the total number of shares of Common Stock issuable under such plan is equal to 10% of the total number of shares of Common Stock outstanding on such date), and (B) 5,000,000 shares are Preferred Stock, par value $0.001 per share, of which [·] shares are subject to outstanding BioPharmX options granted under as of the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock unitsdate hereof, 20,000 have been designated as Series B Convertible Preferred Stock, and [·] none of which are issued and outstanding;
(2) All of the shares of Common Stock outstanding on the date hereof have been duly authorized and are reserved for issuance pursuant to securities (other than the aforementioned options validly issued, fully paid and non-assessable; and
(i3) Except as disclosed set forth in Schedule A1(i)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiary; the Exchange Act Reports: (iiA) except as disclosed in Schedule A1(i)(ii), there are no outstanding optionsoptions to purchase, warrants, scrip, or any rights or warrants to subscribe to, calls or commitments of any character whatsoever relating tofor, or any securities or rights obligations convertible into, or exercisable any contracts or exchangeable forcommitments to issue or sell, any capital stock shares of BioPharmX Common Stock, any shares of Capital Stock of any Subsidiary, or any of the BioPharmX Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, such warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or convertible securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v)obligations, except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to this Agreement, the Registration Rights AgreementOther Agreements, the Exchanged Indenture and the Preferred C of D; and (B) under which BioPharmX or any of the BioPharmX Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX or any of the BioPharmX Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, agreements, arrangements, understandings or arrangements undertakings of any kind to which the Company is a party, or by which BioPharmX or it is bound, granting to any Person the right to require either the Company to file a registration statement under the Securities Act with respect to any securities of the BioPharmX Subsidiaries is Company or may become bound requiring the Company to redeem a security of BioPharmX or include such securities with the Securities registered pursuant to any of the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsregistration statement.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of solely of: (i) 450,000,000 250,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 62,158,526 are issued and outstanding, [·] shares outstanding and 10.000,000 are reserved for issuance pursuant to BioPharmX’s stock option Convertible Securities (as defined below) other than the Exchange Notes, and purchase plans(ii) 50,000,000 shares of preferred stock, par value $0.0001 per share, of which [·] 2,388,905 are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans duly authorized and [·] shares are subject to outstanding BioPharmX restricted stock unitshave been, or upon issuance will be, validly issued, fully paid and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and
(i) non-assessable. Except as disclosed in Schedule A1(i)(iPublic Disclosures: (i) to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws), hereto, none of BioPharmX’s or any BioPharmX Subsidiary; (ii) the Company’s capital stock is not subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX SubsidiaryLiens; (iiiii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, . any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, to calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries. respectively (other than as may be issued from time to time under any equity incentive plan maintained); (iiiiv) except as disclosed in Schedule A1(i)(iii)for the Exchange Note, there are no outstanding debt securities, notesExchange Notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries or by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound; (ivv) except as other than with respect to the publicly disclosed in Schedule A1(i)(iv), senior secured notes. there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (v), except as disclosed in Schedule A1(i)(v), vi) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is obligated to register the sale of any of their securities under the 1933 ActI933 Act (except as provided in the Registration Rights Agreement entered into by the Buyers and the Company contemporaneously herewith); (vivii) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its subsidiaries is or may become bound to co redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiariesits subsidiaries; (viiviii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-anti- dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiix) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary of its subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Public Disclosures contain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.thereof:
Appears in 1 contract
Sources: Exchange Agreement (Nuburu, Inc.)
Equity Capitalization. As of the date of completion of the MergerMay 4, 2023, the authorized capital stock of BioPharmX consists the Company consisted of (i) 450,000,000 115,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 45,699,968 are issued and outstandingoutstanding (including 136,869 shares subject to issued and outstanding restricted stock awards, [·] but not including (A) options to purchase 915,400 shares of Common Stock issued and outstanding under the Company’s 2020 Stock Incentive Plan (the “2020 Plan”), (B) 409,335 shares of Common Stock issuable in respect of issued and outstanding restricted stock units issued under the 2020 Plan, (C) 1,802,649 shares of Common Stock reserved and available for issuance under the 2020 Plan, which shares are not subject to outstanding grants as of April 21, 2023, (D) options to purchase 815,318 shares of Common Stock issued and outstanding under the Company’s 2015 Stock Incentive Plan (the “2015 Plan”), (E) 71,316 shares of Common Stock issuable in respect to issued and outstanding restricted stock units under the 2015 Plan), (F) 1,390,024 shares of Common Stock reserved for issuance pursuant to BioPharmX’s stock option and purchase plansunder the 2015 plan, of which [·] shares are not subject to outstanding BioPharmX options granted under incentive grants (provided that, notwithstanding the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock unitsreservation of such shares, and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options andthe
(i) Except as disclosed in Schedule A1(i)(i), hereto, none None of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii3(p)(ii), there are no outstanding options, warrants, scripscrips, rights or obligations to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii3(p)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Funded Indebtedness with a value in excess of BioPharmX $250,000 individually or any $2,500,000 in the aggregate in the case of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become boundrelated obligations; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries[reserved]; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act; (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed of the Closing, there are no outstanding securities or instruments of the Company or any of its Subsidiaries, which contain any redemption or similar provisions which may be triggered prior to such date that is 91 days after the Maturity Date (as defined in Schedule A1(i)(vii)the Notes) of the Notes, 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 prior to such date that is 91 days after the Maturity Date of the Notes, (viii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiix) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixx) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX any of its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not reasonably expected to have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate Company’s articles of Incorporation incorporation, as amended and BioPharmX restated and as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s by-laws, as amended and restated and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.
Appears in 1 contract
Sources: Securities Purchase Agreement (Daktronics Inc /Sd/)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (ix) 450,000,000 300 million shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerhereof, [·] 29,156,751 (which is subject to increase as outstanding options, warrants, or rights, described herein are exercised) shares are issued and outstanding, [·] 3,585,889 shares are reserved for issuance pursuant to BioPharmXthe Company’s stock option employee incentive plan and purchase plansother options and warrants outstanding (y) 150 million shares of preferred stock, of which [·] as of the date hereof, no shares are issued and outstanding and (z) $12,177,419 in principal amount of convertible notes are outstanding which are convertible into Common Shares in accordance with their terms. All of such outstanding shares have been, or upon issuance will be, duly authorized, validly issued and are fully paid and nonassessable. Except as set forth above in this Section 3(r), in the Company’s Form 10-K for the fiscal year ended September 30, 2005 or filings made with the SEC subsequent thereto, or on Schedule 3(r): (i) no shares of the Company’s capital stock are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities (other than the aforementioned options and
(i) Except as disclosed in Schedule A1(i)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiaryrights; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of BioPharmX or any of the BioPharmX SubsidiariesCompany, or contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries Company is or may become bound to issue additional shares of capital stock of BioPharmX or any of the BioPharmX Subsidiaries Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined in Section 3(s)) of BioPharmX the Company or any which are not disclosed in the Company’s financial statements or filings with the SEC of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except the Registration Rights Agreement); (viv) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (viivi) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixviii) neither BioPharmX nor any of the BioPharmX Company and its Subsidiaries have any no liabilities or obligations required to be disclosed in the SEC Documents which are (as defined herein) but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX Subsidiaries’ any Subsidiary’s respective businesses and which, individually or in the aggregate, do not or could would not have a BioPharmX Material Adverse EffectEffect and as disclosed in Schedule 3(m). TrueThe Company has furnished or made available to the Buyer upon such Buyer’s request, true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Accentia Biopharmaceuticals Inc)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized share capital stock of BioPharmX the Company consists of (i) 450,000,000 shares an unlimited number of BioPharmX Common StockShares, of which as of the date of completion of the Mergerwhich, [·] 1,561,352,718 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 26,802,345 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Holder Warrants) exercisable or exchangeable for, or convertible into, Common Shares and (iii) unlimited number of preferred shares, of which none are issued and outstanding. No Common Shares are held in treasury. All of such outstanding Common Shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. As of the date hereof, 1,736,135 Common Shares are owned by Persons who are “affiliates” (as defined in Rule 405 of the Securities Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Shares are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. Except as disclosed in Schedule A1(i)(ithe SEC Documents, to the Company’s knowledge, as of the date hereof, no Person owns 10% or more of the Company’s issued and outstanding Common Shares (calculated based on the assumption that all Convertible Securities (as defined in the Holder Warrant), heretowhether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% shareholder for purposes of federal securities laws). Except as disclosed in the SEC Documents: (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s share capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances Liens suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional share capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX (as defined below)of the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActSecurities Act (other than as provided hereunder or pursuant to an Other Agreement or Settlement Document); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the New Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock share appreciation rights or “phantom stockshare” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do would not or could not reasonably be expected to have a BioPharmX Material Adverse Effect. TrueThe Company has filed with the SEC true, correct and complete copies of the BioPharmX Certificate Company’s Articles of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Shares and the material rights of the holders thereof in respect thereto that have heretofore not been filed as part of disclosed in the SEC Documents.. For purposes of this Agreement: (x) “Indebtedness” of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of of: (ia) 450,000,000 5,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerhereof, [·] 1,245,267 are issued and outstanding, [·] outstanding and 100,000 shares are reserved for issuance pursuant to BioPharmXthe Company’s stock option and purchase plans; and (b) 1,000,000 shares of Preferred Stock, of which [·] 6,970 shares of Series A Preferred Stock are issued and outstanding and 349 shares of Series B Preferred Stock are issued and outstanding. All of such outstanding shares have been validly issued and are fully paid and nonassessable, and, subject to the Required Stockholder Approval and the filing of the Amended and Restated Certificate of Incorporation and the Series C Certificate of Designations, the Series D Certificate of Designations and the Series E Certificate of Designations with the Delaware Secretary, upon issuance of the Purchased Shares in accordance with the terms and conditions of this Agreement, such Purchased Shares will be validly issued, fully paid and nonassessable and the only outstanding BioPharmX options granted under shares of capital stock shall be such Purchased Shares and the BioPharmX stock plans outstanding shares described in clauses (a) and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities (other than b) of the aforementioned options and
(i) first sentence of this Section 4.22. Except as disclosed in Schedule A1(i)(i)4.22, hereto, (a) none of BioPharmX’s or any BioPharmX Subsidiarythe Company’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances Liens suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (iib) except as disclosed in Schedule A1(i)(ii), there are no outstanding (i) options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or (ii) contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiaries, or (iii) options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iiic) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Securities Act; (vid) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (viie) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the SecuritiesPurchased Share; and (viiif) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of . The Company has furnished to the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TruePurchasers true, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Incorporation, the Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Community Financial Shares Inc)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized issued capital stock of BioPharmX the Company consists of (i) 450,000,000 51,608,810 issued and outstanding shares of BioPharmX Common Stock, Stock and 5,955,775 shares of which as of the date of completion of the Merger, [·] are issued and outstanding, [·] shares are Common Stock reserved for issuance pursuant to BioPharmX’s capital stock option or other securities of the Company or any of its Subsidiaries that are at any time and purchase plansunder any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Company or any of its Subsidiaries (“Convertible Securities”) (other than relating to the aforementioned options and
Securities). 5,350,178 shares of the Company’s issued and outstanding shares of Common Stock, on a fully diluted basis, on the date hereof are owned by a Person who is an “affiliate” (ias defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding shares of Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. Except as disclosed in the SEC Reports or as set forth on Schedule A1(i)(i), 5(t) attached hereto, (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; Securities and (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights rights, restricted stock units or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of . The Company has furnished to the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueBuyers true, correct and complete copies of the BioPharmX Certificate Company’s Articles of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date hereof (the “Articles of Incorporation”), and the Company’s by-laws, as amended and as in effect on the date hereof (the “By-Laws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Marathon Patent Group, Inc.)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 250,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 86,033,514 are issued and outstanding, [·] outstanding and 7,500,000 shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Convertible Securities (as defined below) (other than the aforementioned options andPreferred Stock and the Warrants) and (ii) 5,000,000 shares of preferred stock, none of which are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. 13,843,350 shares of the Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. Except as disclosed on Schedule 3(r), to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws).
(i) Except as disclosed in Schedule A1(i)(i), hereto, none None of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii)the SEC Documents, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii)the SEC Documents, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv)the SEC Documents, there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), ) except as disclosed in Schedule A1(i)(v)the SEC Documents, there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Certificate Company’s Articles of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock Convertible Securities and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereof.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (ix) 450,000,000 20,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerhereof, [·] 10,963,279 shares are issued and outstanding, [·] 922,530 shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans to employees and [·] shares are subject to outstanding BioPharmX restricted stock units, directors and [·] 599,193 shares are reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible into, shares of Common Stock, and (other than y) 1,000,000 shares of preferred stock, of which as of the aforementioned options and
date hereof, none are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as set forth on Schedule 3(q): (i) Except as disclosed in Schedule A1(i)(i), hereto, none no shares of BioPharmX’s or any BioPharmX Subsidiary’s the Company's capital stock is are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits Subsidiary, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiary is or may become bound to issue additional shares of capital stock of BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiary or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares of capital stock of BioPharmX the Company or any of the BioPharmX Subsidiariesits Subsidiary; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any (as defined in Section 3(r)) of the BioPharmX Subsidiaries Company or its Subsidiary or by which BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiary is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts material amounts, either singly or in the aggregate, filed in connection with BioPharmX or any of the BioPharmX SubsidiariesCompany; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiary is obligated to register the sale of any of their securities under the 1933 ActAct (except the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiary which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX Subsidiaries its Subsidiary is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX Subsidiariesits Subsidiary; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has the Company does not have any stock appreciation rights or “"phantom stock” " plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of the BioPharmX Subsidiaries Company and its Subsidiary have any no liabilities or obligations required to be disclosed in the SEC Documents which are (as defined herein) but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s the Company's or the BioPharmX Subsidiaries’ its Subsidiary's respective businesses and which, individually or in the aggregate, do not or could would not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished or made available to the Buyer true, correct and complete copies of the BioPharmX Company's Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the "CERTIFICATE OF INCORPORATION"), and the Company's Amended and Restated Bylaws, as amended and as in effect on the date hereof (the "BYLAWS"), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Evci Career Colleges Inc)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 an unlimited number of shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 92,549,666 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 5,912,417 shares are reserved for issuance pursuant to securities (other than the aforementioned options andCommon Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) an unlimited number of preferred shares, none of which are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. 15,772,974 shares of the Company’s issued and outstanding Common Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of United States federal securities laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, no Person (other than GM) owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Equivalents, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% shareholder for purposes of federal securities laws).
(i) Except as disclosed in Schedule A1(i)(i), heretoOther than under the GM Agreement, none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed pursuant to the Company’s stock option plan (which is fully and accurately described in Schedule A1(i)(iithe SEC-CSA Documents), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii)the SEC-CSA Documents, there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts in excess of $400,000 in the aggregate, filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to this Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed for the Company’s restricted share unit plan and deferred share unit plan (each of which are fully and accurately described in Schedule A1(i)(viiithe SEC-CSA Documents), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC SEC-CSA Documents which are not so disclosed in the SEC SEC-CSA Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe SEC-CSA Documents contain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX Bylawsas in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the SEC-CSA Documents accurately describe the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (ix) 450,000,000 150,000,000 shares of BioPharmX Class A Common Stock, (y) 75,000,000 shares of Class B Common Stock, par value $0.01 per share (“Class B Common Stock”), and (z) 5,000,000 shares of Preferred Stock, par value $0.01, of which as 840,000 are designated 7% Cumulative Convertible Preferred Stock, par value $0.01 (“Preferred Stock”). As of the date February 10, 2011, (1) 38,580,559 shares of completion Class A Common Stock, 11,280,285 shares of the MergerClass B Common Stock, [·] and 40,000 shares of Preferred Stock are issued and outstanding, [·] (2) 337,500 shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plansconversion of the Preferred Stock, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] (3) 3,295,842 shares are reserved for issuance pursuant to the Company’s employee incentive plan and other options outstanding, (4) 12,578,511 shares are reserved for issuance pursuant to warrants outstanding, (5) 11,663,378 shares are reserved for issuance pursuant to a warrant that is expected to be issued February 28, 2011, and (6) 8,691,880 shares are reserved for issuance pursuant to other securities (other than not described above that are exercisable or exchangeable for, or convertible into, shares of Common Stock. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as set forth above in this Section 3(p) or on Schedule 3(p), or as disclosed in the aforementioned options and
1934 Act Filings: (i) Except as disclosed in Schedule A1(i)(i), hereto, none of BioPharmX’s or any BioPharmX Subsidiarythe Company’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiarythe Company; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (viiv) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (viiv) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiivi) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary has the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixvii) neither BioPharmX nor any of the BioPharmX Company and its Subsidiaries have any no liabilities or obligations required to be disclosed in the SEC Documents which are but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not reasonably be expected to have a BioPharmX Material Adverse Effect. True, correct and complete copies of the BioPharmX Certificate of Incorporation and BioPharmX Bylaws, and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documents.
Appears in 1 contract
Sources: Securities Purchase Agreement (Kv Pharmaceutical Co /De/)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists solely of (i) 450,000,000 1,200,000,000 shares of BioPharmX Common Stock, of which as which, 631,388 shares of the date of completion of the Merger, [·] Common Stock are issued and outstanding, [·] outstanding and 4,345,428 shares are reserved for issuance pursuant to BioPharmX’s stock option and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] shares are reserved for issuance pursuant to securities Convertible Securities (as defined below) (other than the aforementioned options and
Preferred Shares and the Warrants); and (iii) 20,000,000 shares of Preferred Stock, of which 8 shares of Series H Convertible Preferred Stock are issued and outstanding, 1,234 shares of Convertible Preferred Stock Series H-3, 50 shares of Series H-6 Convertible Preferred Stock are issued and outstanding, and 4,361.26 shares of Series H-7 Convertible Preferred Stock are issued and outstanding. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as disclosed in Schedule A1(i)(i)the SEC Documents, hereto, (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities Convertible Securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 500,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Merger, [·] 20,318,815 shares are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 2,586,077 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (iii) Except 10,000,000 shares of preferred stock, of which, (A) 1,250,000 shares have been designated as disclosed Series A Preferred Stock and (B) 1,500,000 shares have been designated as Series B Preferred Stock, and in Schedule A1(i)(i)each case, heretono shares are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, none or upon issuance will be, validly issued and are fully paid and non-assessable. 801,009 shares of BioPharmXthe Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are “Affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “Affiliates” without conceding that any such Persons are “Affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. None of the Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), Subsidiary and there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of its Subsidiaries. Except as set forth in the BioPharmX Subsidiaries; SEC Documents, (iiiA) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (ivB) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), C) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to this Agreement); (viD) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (viiE) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiF) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixG) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could would not have a BioPharmX Material Adverse Effect. TrueThe SEC Documents contain true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 14,285,714 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 1,558,669 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 12,727,045 shares are reserved for issuance pursuant to securities (other than the aforementioned options andPreferred Shares and the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 5,000,000 shares of preferred stock, none of which are issued and outstanding. No shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. To the Company’s knowledge, 12,119 shares of the Company’s issued and outstanding Common Stock on the date hereof are owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only executive officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries. Except as disclosed in the SEC Documents, to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws).
(i) Except as disclosed in Schedule A1(i)(i), hereto, none None of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii3(r)(iii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to issue additional capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii3(r)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX the Company or any of the BioPharmX its Subsidiaries or by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX the Company or any of the BioPharmX its Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), ) there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActAct (except pursuant to the Registration Rights Agreement); (vi) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished to the Buyers true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (WPCS International Inc)
Equity Capitalization. As of the date of completion of the Mergerhereof, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 250,000,000 shares of BioPharmX Common Stock, of which which, as of the date of completion of the Mergerhereof, [·] 44,487,203 shares are issued and outstanding, [·] 13,244,836 shares are reserved for issuance pursuant to BioPharmX’s stock option the Company's employee incentive plan, including options issued and purchase plansoutstanding thereunder, of which [·] shares 640,190 are subject reserved for issuance pursuant to outstanding BioPharmX options granted under the BioPharmX stock plans warrants and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] no shares are reserved for issuance pursuant to other securities (other than the aforementioned options and
(iWarrants) Except as disclosed in Schedule A1(i)(i)exercisable or exchangeable for, heretoor convertible into, none shares of BioPharmX’s Common Stock. All of such outstanding shares have been, or any BioPharmX Subsidiary’s upon issuance will be, validly issued and are fully paid and nonassessable. No shares of the Company's capital stock is are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX or any BioPharmX Subsidiary; (ii) except as disclosed the Company. Except for registration rights granted to investors in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights the Company prior to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any the initial public offering of the BioPharmX Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX or any of Common Stock as set forth in the BioPharmX Subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v)SEC Documents, there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX Subsidiaries Subsidiary is obligated to register the sale of any of their securities under the 1933 Act; Act (vi) except as disclosed in Schedule A1(i)(vithe Registration Rights Agreement), there are no outstanding securities or instruments of BioPharmX or any of the BioPharmX Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound to redeem a security of BioPharmX or any of the BioPharmX Subsidiaries; (vii) except as disclosed in Schedule A1(i)(vii), there . There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) except as disclosed in Schedule A1(i)(viii), neither BioPharmX nor any BioPharmX Subsidiary . The Company has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither BioPharmX nor any of made available to the BioPharmX Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmX’s or the BioPharmX Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueBuyer true, correct and complete copies of the BioPharmX Company's Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the "Certificate of Incorporation"), and the Company's Bylaws, as amended and as in effect on the date hereof (the "Bylaws"), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX Common Stock and the material rights of the holders thereof in respect thereto have heretofore been filed as part of the SEC Documentsthereto.
Appears in 1 contract
Equity Capitalization. As of the date of completion of the MergerAugust 2, 2014, the authorized capital stock of BioPharmX the Company consists of (i) 450,000,000 300,000,000 shares of BioPharmX Common Stock, of which as of the date of completion of the Mergerwhich, [·] 84,860,314 are issued and outstanding, [·] shares are reserved for issuance pursuant to BioPharmX’s stock option outstanding and purchase plans, of which [·] shares are subject to outstanding BioPharmX options granted under the BioPharmX stock plans and [·] shares are subject to outstanding BioPharmX restricted stock units, and [·] 2,045,847 shares are reserved for issuance pursuant to securities (other than the aforementioned options and
Exchanged Notes and the Exchanged Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock plus additional shares subject to restricted share units pursuant to the Company’s equity plan. 351,692 shares of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable. To the Company’s knowledge, as of the date hereof, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (icalculated based on the assumption that all Convertible Securities (as defined in the Exchanged Note), whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws). Except as disclosed in Schedule A1(i)(i), hereto, 4.9: (i) none of BioPharmXthe Company’s or any BioPharmX Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by BioPharmX the Company or any BioPharmX Subsidiary; (ii) except as disclosed in Schedule A1(i)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries, or contracts, commitments, understandings or arrangements by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound to issue additional capital stock of BioPharmX or any of the BioPharmX Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of BioPharmX or any of the BioPharmX Subsidiaries; (iii) except as disclosed in Schedule A1(i)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of BioPharmX or any of the BioPharmX Subsidiaries or by which BioPharmX or any of the BioPharmX Subsidiaries is or may become bound; (iv) except as disclosed in Schedule A1(i)(iv), there are no financing statements securing obligations in any amounts filed in connection with BioPharmX or any of the BioPharmX Subsidiaries; (v), except as disclosed in Schedule A1(i)(v), there are no agreements or arrangements (other than pursuant to the Registration Rights Agreement) under which BioPharmX the Company or any of the BioPharmX its Subsidiaries is obligated to register the sale of any of their securities under the 1933 ActSecurities Act (except pursuant to the Registration Rights Agreement and as contemplated by the Securities Purchase Agreement); (viiii) except as disclosed in Schedule A1(i)(vi), there are no outstanding securities or instruments of BioPharmX the Company or any of the BioPharmX its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which BioPharmX the Company or any of the BioPharmX its Subsidiaries is or may become bound to redeem a security of BioPharmX the Company or any of the BioPharmX its Subsidiaries; (viiiv) except as disclosed in Schedule A1(i)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viiiv) except as disclosed in Schedule A1(i)(viii), neither BioPharmX the Company nor any BioPharmX Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ixvi) neither BioPharmX the Company nor any of the BioPharmX its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of BioPharmXthe Company’s or the BioPharmX its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a BioPharmX Material Adverse Effect. TrueThe Company has furnished or otherwise made available to the Holder true, correct and complete copies of the BioPharmX Company’s Certificate of Incorporation Incorporation, as amended and BioPharmX as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, BioPharmX shares of Common Stock and the material rights of the holders thereof in respect thereto that have heretofore not been filed as part of disclosed in the SEC Documents.
Appears in 1 contract
Sources: Amendment, Consent and Exchange Agreement (Wet Seal Inc)