Schedule 4.3 sets forth as of the date hereof, and upon the acceptance for filing of the Series C Preferred Stock Certificate of Designation, (i) the authorized capital stock of the Company; (ii) the number of shares of capital stock issued and outstanding; (iii) the number of shares of capital stock issuable pursuant to options or other rights outstanding under the Stock Option Plan and (iv) the number of shares of capital stock issuable and reserved for issuance pursuant to Equity Securities (other than the Series C Shares, the Warrants and options or other rights outstanding under the Stock Option Plan) exercisable for, or convertible into or exchangeable for any shares of capital stock of the Company. All of the issued and outstanding shares of the Company’s and each Subsidiary’s Equity Securities have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights and were issued in full compliance with applicable state and federal securities law and any rights of third parties. Except as described on Schedule 4.3, no Person is entitled to pre-emptive or similar statutory or contractual rights with respect to any Equity Securities of the Company or any Company Subsidiary. Except as described on Schedule 4.3, there are no outstanding warrants, options, convertible securities or other rights, agreements or arrangements of any character under which the Company or any of its Subsidiaries is or may be obligated to issue any Equity Securities of any kind and except as contemplated by this Agreement, neither the Company nor any of its Subsidiaries is currently in negotiations for the issuance of any Equity Securities of any kind. Except as described on Schedule 4.3 and except for the Amended and Restated Investor Rights Agreement, there are no voting agreements, buy-sell agreements, option or right of first purchase agreements or other agreements of any kind among the Company or any Company Subsidiary and any of the securityholders of the Company or any Company Subsidiary relating to the securities of the Company or any Company Subsidiary held by them. Except as described on Schedule 4.3, no Person has the right to require the Company or any Company Subsidiary to register any securities of the Company under the Securities Act, whether on a demand basis or in connection with the registration of securities of the Company or any Company Subsidiary for its own account or for the account of any other Person.
Schedule 4.3 contains a true and complete list of the Subsidiaries of the Company and sets forth, with respect to each such Subsidiary, the jurisdiction of formation or incorporation, the jurisdictions in which each such Subsidiary is qualified to do business, the authorized and outstanding Capital Stock of such Subsidiary and the owner(s) of record of such outstanding Capital Stock, which hold such Capital Stock free and clear of all Liens. All of the outstanding shares of Capital Stock of the Subsidiaries of the Company (collectively, the “Subsidiary Shares”) are duly authorized, validly issued, fully paid and nonassessable and were not issued in violation of any applicable preemptive or similar right or federal or state securities Law.
Schedule 4.3 sets forth all of the issued and outstanding Ownership Interests in each Company and the owners (of record and otherwise) of such Ownership Interests. All of the Equity Interests have been duly authorized and validly issued and are fully paid (to the extent required under the Organizational Documents of the applicable Company) and non-assessable (except as such non-assessability may be affected by applicable Law) and were not issued in violation of, and, except as identified in Schedule 4.3, are not subject to, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of applicable Law, the Organizational Documents of the applicable Company or any Contract to which such Company is or was a party or by which it is or was otherwise bound.
Schedule 4.3. Capitalization) shall be deleted in its entirety and a new Schedule 4.3 attached hereto shall be substituted therefor.
Schedule 4.3 sets forth, with respect to each Acquired Subsidiary, the number of equity interests thereof issued and outstanding, the names of all owners of such equity interests, and the amount of equity owned by each such equity owner.
Schedule 4.3 sets forth a complete and accurate list of all shareholders of Buyer, indicating the number and class of Buyer Shares held by each shareholder;
Schedule 4.3 sets forth (i) the name of each Subsidiary of the Company, (ii) the name of each corporation, partnership, joint venture or other entity (other than Subsidiaries of the Company) in which the Company has, or has the right to acquire, an equity or other ownership interest and (iii) the capitalization of the foregoing and the percentage of equity or other ownership interests therein held by the Company or by any of its Subsidiaries.
Schedule 4.3 contains a copy of the (i) audited consolidated financial statements of Seller and its Subsidiaries as of, and for the years ended, December 31, 2006, 2005 and 2004, and (ii) the unaudited consolidated balance sheet of Seller and its Subsidiaries as of March 31, 2007 (the “Most Recent Balance Sheet”), and the related statement of income for the three-month period then ending (clauses (i) and (ii) collectively, the “Financial Statements”). Each of the Financial Statements fairly presents, in all material respects, the financial condition and the results of the operations of Seller and its Subsidiaries, as of the dates and for the respective periods indicated. The Financial Statements have been prepared in accordance with GAAP in all material respects on a consistent basis throughout the periods involved and consistent with the internal accounting practices of Seller for equivalent prior accounting periods, except as otherwise disclosed in Schedule 4.3 or the Financial Statements and, with respect to the unaudited financial statements, subject to normal year-end adjustments and the absence of notes.
Schedule 4.3 hereof sets forth a true, complete and correct list of each corporation or other entity in which the Company holds an interest of greater than fifty percent (50%) (each such corporation or other entity is referred to herein as a “Subsidiary” and, collectively, the “Subsidiaries”) as well as each entity in which the Company holds a minority interest. Each Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation with corporate power and corporate authority under such laws to own, lease and operate its properties and conduct its business as currently conducted; and each Subsidiary is duly qualified to transact business as a foreign entity and is in good standing (if applicable) in each other jurisdiction in which it owns or leases property of a nature, or transacts business of a type, that would make such qualification necessary. All of the issued and outstanding equity interests of each Subsidiary which are owned by the Company have been duly authorized and validly issued, and are fully paid and non-assessable. The Company, directly or indirectly, owns the percentage interests indicated on Schedule 4.3 next to each such Subsidiary, free and clear of any Liens, except as set forth on Schedule 4.3.
Schedule 4.3. 4 lists each of the following Contracts of the Company, but excluding the portions of any Contracts or term sheets, the disclosure of which, as determined by the board of directors, would reasonably be expected to cause substantial competitive harm to the Company (such Contracts, together with all Contracts concerning the occupancy, management or operation of any real property (including without limitation, brokerage contracts) listed or otherwise disclosed in the Disclosure Schedules and all Intellectual Property Rights identified on Schedule 4.15(b), the “Company Material Contracts”):